Parks v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0088

SCOTT PARKS	Applicant
v
THE KING	Respondent

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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2025
DATE OF JUDGMENT:	28 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 84
JUDGMENT APPEALED FROM:	[2024] VCC 408 (Judge Cannon)

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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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CRIMINAL LAW – Appeal – Sentence – Firearms, drug trafficking and proceeds of crime offending – Applicant on parole for similar offending at time offences committed – Significant and relevant criminal history – Statutory presumptions of cumulation and order of sentence – Totality – Whether sentence manifestly excessive – Sentence within range – Application for leave to appeal refused.

Sentencing Act 1991, ss 6E, 15 and 16(3B).

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Counsel
Applicants:		Mr P Smallwood
Respondent:		Mr J Dickie
Solicitors
Applicants:	Ellinghaus Weill Lawyers & Consultants
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 28 February 2024 the applicant pleaded guilty to a number of firearm and drug related offences. On 4 April 2024 he was sentenced as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Fail to surrender firearm related item on service of firearm prohibition order[1]	5 years	6 months	Nil
2	Traffick in a drug of dependence – commercial quantity[2]	25 years	7 years	Base
3	Traffick in a drug of dependence – commercial quantity[3]	25 years	6 years	12 months
4	Traffick in a drug of dependence[4]	15 years	3 years	Nil
5	Possess a drug of dependence[5]	30 penalty units and/or 1 year	3 months	Nil
6	Knowingly deal with proceeds of crime[6]	15 years	4 years	6 months
Related Summary Offences
6	Possess cartridge ammunition whilst not the holder of a licence[7]	40 penalty units	Fined $1,000.00	Nil
9	Breach condition of parole without reasonable excuse[8]	30 penalty units and/or 3 months	2 months	Nil
Total Effective Sentence:		8 years 6 months
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		1 day
Section 6AAA Statement:		Total Effective Sentence 12 years Non Parole-Period 9 years 6 months
Other Relevant Orders: Applicant sentenced as a serious drug offender pursuant to s 89DI of the Sentencing Act 1991.[9]

[1]Contrary to s 112P of the Firearms Act 1996.

[2]Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[3]Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[4]Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[5]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[6]Contrary to s 194(2) of the Crimes Act 1958.

[7]Contrary to s 124 of the Firearms Act 1996.

[8]Contrary to s 78A(1) Corrections Act 1986.

[9](‘Sentencing Act’).

The applicant now seeks leave to appeal against sentence on the single ground that the sentences imposed on charges 2 and 3, the total effective sentence and the non-parole period are manifestly excessive in all the circumstances.
For the reasons that follow leave to appeal should be refused.

The offending

In November 2022 the applicant was living with his partner Paige Heyman at an address in Weir Views. The applicant was on parole (related summary offence 9) and in receipt of a disability pension. Ms Heyman was in receipt of WorkCover benefits. Neither were in paid employment. Two children aged nine and seven were also members of the household.
On 16 November 2022 police attended the address and served the applicant with a Firearm Prohibition Order. The applicant was given the opportunity to disclose the presence of firearms or firearm related items on the premises. He said there were none. A subsequent search found 9x9 millimetre rounds of ammunition wrapped in a tea towel (charge 1; related summary offence 6).
The applicant was arrested. Police then searched the applicant’s premises. Drugs and Australian currency were found, namely:
(a)28.9 litres of 1,4-butanediol located in variously sized vessels in the garage, Ms Heyman’s car, a plastic tub dug into the garden bed and the recycling bin (charge 2).
(b)309.1 grams of methylamphetamine in crystal form with an average purity of 82 percent, batched in small quantities in zip lock bags, located in the garage, a plastic tub dug into the garden bed and in a pile of mulch on the driveway (charge 3).
(c)537 grams of MDMA of a purity between 13 and 32 percent (charge 4).
(d)One gram of cocaine and 0.5 grams of cannabis (charge 5).
(e)A total of $275,190 cash, of which $217,187.50 was alleged to be the proceeds of crime, in various parts of the house and in a pile of mulch in the driveway (charge 6).
Police also seized and later analysed a number of electronic devices. They were found to contain multiple conversations between the applicant and his associates regarding drug trafficking.
When interviewed the applicant admitted failing to disclose the ammunition. He admitted possession of the drugs but denied trafficking and also denied that the cash was the proceeds of crime.

Cancellation of the applicant’s parole

On 19 August 2016 the applicant had been sentenced in the County Court to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of four years and six months for drug offences. These offences were: traffick in a drug of dependence in not less than a commercial quantity (methylamphetamine), traffick in a drug of dependence (cannabis), possess a precursor chemical (phosphorous acid), possess cocaine and possess 1,4-butanediol.
The applicant was granted parole on 5 January 2021.
On 17 November 2022 his parole was cancelled.

Sentencing Reasons[10]

[10]DPP v Parks [2024] VCC 408 (‘Reasons’).

The judge commenced her Reasons by noting the maximum penalties of the offences to which the applicant had pleaded guilty. After summarising the offending the judge described it as ‘most serious’ and deserving of just punishment and denunciation.[11] The judge continued that it was ‘somewhat breathtaking’[12] that the applicant offended in such a serious manner whilst on parole in relation to similar offending for which he had received a substantial gaol term.
[11]Reasons, [48].
[12]Reasons, [49].
The judge considered the nature and quantity of the drugs involved in the offending. The quantity of 1,4-butanediol was noted to be 14 and a half times the commercial quantity threshold. The judge said that the trafficking was a serious example of the offence. In forming that opinion the judge accepted that some of the substance was in the applicant’s possession for his own use and that the level of financial reward from trafficking in 1,4-butanediol is not as great as that from other illicit drugs.[13] The quantity of methylamphetamine was noted to be 59 grams over the commercial quantity threshold and of a high level of purity.
[13]DPP (Cth) v Maxwell (2013) 228 ACR 218; [2013] VSCA 50.
The significant sums of cash recovered founded the judge’s opinion that a primary motivation for the applicant’s offending was to make a profit.[14] The evidence established that he had conducted a significant drug trafficking business. The judge said that was so despite the applicant’s ongoing battle with drug addiction. It was noted that the applicant was charged with a single day of offending but, without speculating as to the extent or period over which the trafficking occurred, the judge did consider that the offending was not confined to one day.
[14]Reasons, [53], [99]–[100], [108].
The judge found the applicant’s moral culpability for the offending to be high.[15]
[15]Reasons, [97].
The judge said that the offending and the applicant’s prior criminal history gave her ‘grave cause for concern’[16] as to the applicant’s prospects of rehabilitation and the assessment of any remorse or insight on his part given that it occurred so soon after the 2016 offending. Specific deterrence was thereby of some weight.[17]
[16]Reasons, [54].
[17]Reasons, [112]
The judge then detailed the applicant’s relevant criminal history as follows.
(a)On 16 January 2009 the applicant was convicted in the Sunshine Magistrates’ Court of possess cannabis, cultivate a narcotic plant being cannabis, traffick cannabis, use cannabis and deal with property suspected to be proceeds of crime. He was placed on a 12 month community based order and required to undergo assessment for mental health and drug treatment in addition to other conditions.
(b)On 30 April 2010 the applicant was convicted in the Sunshine Magistrates’ Court of traffick methylamphetamine, prohibited person possess a firearm, deal with property suspected to be proceeds of crime and possess cannabis. He was sentenced to an aggregate term of eight months’ imprisonment which was wholly suspended for 18 months. He was also dealt with for failing to comply with the community based order previously imposed. That order was confirmed and the applicant was directed to continue to receive treatment under the auspices of the Community Forensic Mental Health Services.
(c)On 2 February 2011 the applicant was convicted in the Sunshine Magistrates’ Court of two charges of deal with property suspected to be proceeds of crime, burglary, theft, possess a drug of dependence, possess ammunition without a licence and possess a prohibited weapon without exemption or approval. The applicant was sentenced to an aggregate term of 11 months’ imprisonment to be served by way of an intensive corrections order and fined $1,200. He was also dealt with for breaching the suspended sentence. The magistrate was persuaded of ‘exceptional circumstances’ and did not require the applicant to enter custody. The applicant continued to participate in the Forensicare Problem Behaviour Program.
(d)On 19 August 2016 the applicant was convicted by a jury in the County Court of traffick a commercial quantity of a drug of dependence (methylamphetamine), traffick cannabis and possess a precursor chemical (phosphorous acid). He pleaded guilty to possess cocaine, possess 1,4- butanediol and the summary offence of possess cartridge ammunition without a licence or permit. The total weight of the methylamphetamine was 218.6 grams, of which 195 grams was pure. It had been found in 13 separate packages in the applicant’s home. He was sentenced to a total effective sentence of seven years and six months imprisonment in relation to all of the offences except the summary matter, for which he was fined $800. The non-parole period was four years and six months.
(e)On 17 February 2017 the applicant was convicted of possess ecstasy, possess methylamphetamine, deal with property suspect to be proceeds of crime, commit an indictable offence whilst on bail and use methylamphetamine. The matter was aged by the time of the disposition. The applicant was sentenced to an aggregate term of three months’ imprisonment in relation to all but the bail offence. The term was ordered to be served concurrently with the sentence he was then undergoing. Also, the fine of $800 imposed on 19 August for the summary offence of possess cartridge ammunition without a licence or permit was varied. A sentence of six days’ imprisonment, concurrent with the sentence the applicant was then undergoing, was imposed.
Next the judge considered the applicant’s background, summarised as follows.
The applicant was 50 years of age at the time of sentence. He grew up the elder of two children in suburban Melbourne. His childhood was ‘harsh and joyless’.[18] His father was absent. The need to work took his mother away from home. The applicant assumed responsibility for himself and younger sister. When he was eight, his mother was injured in a car accident and the applicant was her primary carer during her recovery. A step-father arrived when the applicant was 12. He was a most negative influence. The applicant’s mother died of cancer in 2013. His sister has cancer.
[18]Reasons, [67].
The applicant was schooled to year 11 level but exhibited behavioural issues throughout. He has now, as a result of his contact with the criminal justice system, come to be diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). After school the applicant commenced but did not complete a carpentry apprenticeship. He then commenced but did not complete an electrical apprenticeship. Thereafter he worked in unskilled jobs.
The applicant was a functioning drug addict for many years but in 2009, when the applicant was 34 years of age, his drug use spiralled out of control. He was placed on a Disability Support Pension. His engagement with the Forensicare ‘Problem Behaviour Program’ – arising from the 2009 community based order – was patchy.
The applicant has two adult children from a previous marriage. They are both law abiding and successful. He also has four grandchildren.
In 2015 the applicant was stabbed by a friend suffering mental health difficulties. The applicant suffered life-threatening injuries. The incident led to the development of (or exacerbation of pre-existing) Post Traumatic Stress Disorder (‘PTSD’) symptoms.
During the custodial sentence imposed in 2016 the applicant was medicated for both ADHD and PTSD. His transition to parole through staged release in 2020 was thwarted by the COVID-19 pandemic restrictions. Upon being paroled, the applicant struggled to obtain appropriate ADHD medication. His current medication regime in custody is adequate.
The judge allowed for a ‘significant’ or ‘palpable’ discount[19] in the sentence as a result of the applicant’s pleas of guilty. They were made at the earliest opportunity and were of significant utilitarian value. That value was augmented by their timing during the backlog of cases caused by the COVID-19 pandemic. The judge did not accept that the pleas were evidence of ‘heartfelt remorse’[20] or appropriate insight into the seriousness of the offending.
[19]Reasons, [98].
[20]Reasons [99].
The judge also made allowance for the applicant’s diagnoses of ADHD, PTSD and depression in that they would make his time in custody more difficult than it would be for a prisoner without those conditions. That the symptoms of applicant’s conditions may be exacerbated by the custodial environment was also given weight.
The applicant’s efforts at drug rehabilitation and the use of NDIS funded counselling in custody were considered by the judge, along with character references tendered in his support and other material.
As the applicant’s offending occurred whilst he was on parole, the judge said that there was a presumption of cumulation between the sentence she would impose and that imposed in 2016. The judge recorded that the applicant did not contend that there were any exceptional circumstances which would justify a departure from that presumption. The judge accepted that the principle of totality applied such that a disproportionate sentence was not warranted.
The judge then said
I was told that having been released on parole on 5 January 2021, your parole was cancelled on 17 November 2022, and you were returned to custody on that date. You were remanded in relation to the matters before me on 18 November 2022. You have been serving the sentence imposed by His Honour Judge Murphy since this time such that as at the plea hearing date you had served a further 460 days or approximately 15 and a half months. As of today, the day of sentencing you, you have served a total of 2,152 days, not including today, of this sentence, which means that you have 582 days remaining. I understand that calculation emergency management days have been allowed for. …[21]
[21]Reasons, [104].
The judge referred to s 16(3B) of the Sentencing Act and emphasised again that she had applied the principle of totality despite the presumption therein and the effect of other sentencing requirements. These were s 15 of that Act and that the applicant fell to be sentenced as a serious drug offender in relation to charges 2 and 3. Section 15 of the Sentencing Act, as to the order of service of sentences, meant that the 2016 sentence would be suspended while the applicant served the non-parole period of the sentence imposed by the judge. The balance of the 2016 sentence would then be served. As to the applicant’s status as a serious drug offender, the judge found that the principle of totality required that some part of the sentences imposed on charges 2 and 3 ought to be served concurrently with the other sentences imposed in relation to the matters then before the court.[22]
[22]Sentencing Act, s 6E.
The judge further said that there was no presumption of cumulation between charges 1, 4, 5, 6 and the summary offence of breaching parole. The judge noted that each of the charges represented separate offending such that total concurrency of sentences was not axiomatic, but said that the principle of totality also applied to her consideration of those charges.
Finally, the judge said that she had considered current sentencing practices.

Applicant’s contentions

The applicant filed a written case in terms that were different from the matters argued at the hearing of the application. The written case was not abandoned, but the matters in it were not pressed. Rather, the applicant framed his application for leave as concerning the interaction between the sentence imposed by the judge and the 2016 sentence. In short, it was put that it is reasonably arguable that the sentence is manifestly excessive because the judge failed to give sufficient weight to the principle of totality. The weight appropriate to the matters available to the applicant in mitigation of penalty are argued to ‘buttress’ that submission, but it is not put that those matters, considered in the absence of the totality issue, would sustain the applicant’s proposed ground of appeal.
I have determined this application on that basis.
The applicant outlined the following as relevant to his application.
(a)On 19 August 2016 when the applicant was sentenced to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of four years and six months, a declaration that 47 days pre-sentence detention be reckoned as already served was made. The applicant was released on parole on 5 January 2021. As at that date, therefore, he had served 1,648 days of that sentence.
(b)He was arrested for the instant offending on 16 November 2022. His parole was cancelled on 17 November 2022. He was sentenced on 4 April 2024. Thus, 16 November was a single day of pre-sentence detention and, between 17 November 2022 and 4 April 2024, the applicant served a further 504 days of the 2016 sentence. That period could not be reckoned as pre-sentence detention for the instant offending.
(c)Therefore at the time the applicant was sentenced by the judge, he had served 2,152 days[23] of the 2016 sentence, with 582 days left to serve.
(d)The non-parole period imposed by the judge on, and to run from, 4 April 2024 was five years. That means the applicant will be eligible for parole on that sentence in about April 2029. By then he will have been in custody since his arrest on 16 November 2022, a period of over six years and four months. The applicant will then be 55 years of age.
(e)Ignoring issues of parole, the overall sentence, being the product of the 2016 sentence and that imposed by the judge, is 16 years. It will expire in about May 2034. The applicant will then be 60 years old.
[23]It is agreed between the parties that the 2,152 days does not include emergency management days. See Reasons, [104].

In light of these matters, the applicant submitted that the judge gave manifestly insufficient weight to the issue of totality given the combined effect of the 2016 sentence and that imposed for the instant offending, even in the face of the two applicable statutory presumptions of cumulation. In this regard the applicant referred to the observation of Redlich JA in Azzopardi v The Queen[24] that the severity of a term of imprisonment is an exponential rather than linear function.[25]
[24][2011] VSCA 372 (‘Azzopardi’) (Redlich JA, Coghlan and Macaulay AJJA).
[25]Azzopardi, [63]. Redlich JA cited Fox and Frieberg, Sentencing in State and Federal Law in Victoria (2^nd ed, 1999), 725 and Clinch v The Queen (1994) 72 A Crim R 301 (Malcolm CJ) as the sources of the observation.
Finally, to buttress his main submission, the applicant relied on the judge’s findings as to the likely effect of the applicant’s diagnoses of PTSD, ADHD and depression on his experience of custody and the high utilitarian value of his pleas of guilty necessitating a palpable reduction in sentence.

Respondent’s contentions

The respondent submitted that the applicant’s contention that the sentence is ‘too much’ is not reasonably arguable.
It is argued that in 2016 the applicant had received a fairly substantial sentence for serious drug offending and then breached his parole by very serious drug offending of a like manner. It is put that the Reasons disclose that the judge was very conscious of the principle of totality, as demonstrated by the ‘fairly generous’ orders for concurrency and cumulation concerning the individual sentences imposed.

Consideration

An applicant arguing that a sentence imposed is manifestly excessive must satisfy a stringent requirement. It must be demonstrated that the sentence imposed is wholly outside the range of sentences open to the judge in the sound exercise of his or her sentencing discretion. It is insufficient to demonstrate that the sentence is longer than this Court might have imposed in the circumstances of the case. The applicant must demonstrate that the sentence was so excessive as to bespeak error by the judge.
On this application, the applicant has failed to do so.
The judge faced a very difficult sentencing task. The applicant came before the judge with a significant and highly relevant criminal history. His offending was aggravated by the fact that it was committed whilst on parole for like offending. The judge’s description of the applicant’s conduct as ‘breathtaking’ was apt. Notwithstanding his drug addiction, the judge found that the applicant’s primary motivation for the offending was profit. That finding is not challenged by the applicant. He conducted a drug trafficking business. He did so whilst on parole for earlier offending in conducting a drug trafficking business.
It is to be remembered that the trade in illicit drugs has enormous social harms and the very real potential to ruin many lives. This Court has emphasised that matter on many occasions.[26]
[26]See, eg, R v Piercey [1971] VR 647, 653 (Winneke CJ, Adam and Newton JJ) ; R v Berisha [1999] VSCA 112, [33] (Charles JA, Tadgell JA agreeing at [38], Buchanan JJA agreeing at [45]); R v James [2003] VSCA 13, [32] (Chernov JA, Batt JA agreeing at [66], Buchanan JA agreeing at [67]); Lieu v The Queen (2016) 263 A Crim R 173, 189–90 [54] (Beach and Kaye JJA, Redlich JA agreeing at [1]); [2016] VSCA 277; Gregory (a pseudonym) v The Queen [2017] VSCA 151 [80] (Maxwell P, Redlich and Beach JJA); Arico v The Queen (2018) 272 A Crim R 450 [317] (Maxwell ACJ); [2018] VSCA 135.
It follows that the offending was extremely serious and the judge was correct to assess the applicant’s moral culpability for it as high. The offending warranted a sentence that manifested denunciation of the conduct and would deter others from the same. The judge was also correct that specific deterrence had a large role to play in the sentencing exercise. Although not expressly referred to by the judge, so too did protection of the community. The significant gaol term imposed in 2016 had been insufficient to deflect the applicant from commercial scale drug offending. The judge found the applicant had no genuine remorse. He lacked insight into his offending. The judge (implicitly) found his prospects for rehabilitation to be poor.
The judge expressly considered the matters of mitigation emphasised by the applicant on this application. By reference to the expert material before her, the judge discussed at some length the negative impact the impairments to the applicant’s mental functions would have on his time in gaol and the risk that his symptoms would exacerbate whilst in custody. The judge considered difficulties in the management of the applicant’s medication regime. The judge gave weight to these matters notwithstanding her observation that it ‘beggar[ed] belief’[27] that given the applicant’s experience of gaol, his knowledge of its impact upon his conditions and his knowledge that if he reoffended he would be returned to custody, he did in fact reoffend. The judge also explained that she would give a palpable discount for the utilitarian value of the applicant’s pleas, both generally and because of Worboyes[28] considerations.
[27]Reasons, [102].
[28]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
There were two presumptions of cumulation for the judge to consider.
First, s 16(3B) of the Sentencing Act requires, absent exceptional circumstances, every term of imprisonment imposed for an offence committed while released under parole order be served cumulatively on any period of imprisonment required to be served as a result of the cancellation of parole. The applicant did not argue the existence of exceptional circumstances.
The judge was thereby bound to apply the presumption.
Second, s 6E of the Sentencing Act requires, unless directed otherwise by the judge, every term of imprisonment imposed by a court on a serious offender for a relevant offence to be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender.
The judge referred to this section and, in obvious application of the totality principle, did direct otherwise. Charge 2, for which a sentence of imprisonment of 7 years was imposed, was the base sentence. Only 12 months of the sentence of 6 years imprisonment imposed with respect to charge 3 was ordered to be served cumulatively. All other sentences, except charge 6 (and summary charge 6) were to be served concurrently with the base sentence. The order for cumulation on charge 6 was six months of the 4 years imposed.
The judge was also required to, and did, consider the effect of s 15 of the Sentencing Act as to the order of sentences. The judge said correctly that the non-parole period she imposed would be served first and only after it had expired would the balance of the 2016 sentence be served.
The judge arrived at a sentence whose effect was that the applicant will become eligible for parole after he has been in continuous custody for some six years and four months – that is the five year non-parole period imposed by the judge plus the 504 days of the 2016 sentence served between the cancellation of parole and the sentence. If the applicant is required to serve his full sentence[29] he will be released after some 11 and a half years.
[29]Sentencing Act, s 5(2AA)(a).
All the circumstances of this case do not bespeak an error in the sentencing discretion by reason of a failure to correctly apply the principle of totality (or for any other reason) such that it is reasonably arguable that the sentence is manifestly excessive. The applicant’s offending was extremely serious. It was committed whilst he was on parole for similar very serious offending. He had an extensive and relevant criminal history. He had no remorse and little insight. Denunciation, general deterrence, specific deterrence, just punishment and protection of the community had real work to do in the sentencing synthesis. The judge considered and gave weight to the matters upon which he could rely in mitigation of penalty. The judge was required to apply statutory presumptions of cumulation and order of sentences. The sentences imposed demonstrate that the judge also applied the principle of totality in the exercise of her sentencing discretion.
It is not reasonably arguable that the sentence is manifestly excessive.

Conclusion

Leave to appeal will be refused.

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[2025] VSCA 84

28 April 2025