Pollard v The Queen
[2015] VSCA 138
•9 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0261
| RICHARD POLLARD |
| v |
| THE QUEEN |
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| JUDGES: | ASHLEY, REDLICH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 May 2015 |
| DATE OF JUDGMENT: | 9 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 138 |
| JUDGMENT APPEALED FROM: | DPP v Pollard (Unreported, County Court of Victoria, Judge Lacava, 31 October 2014) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking multiple drugs and other drug-related offences at distinctly different times – Later offending when on bail for first offending – Two indictments – Orders for partial cumulation – Total effective sentence of 11 years’ imprisonment with non-parole period of seven years and four months’ imprisonment – Whether sentence imposed for one offence manifestly excessive – Whether orders for cumulation resulted in manifestly excessive total effective sentence and non-parole period – Totality – Appeal allowed in part – New total effective sentence of nine years and nine months’ imprisonment, with non-parole period of six years and six months’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D D Gurvich | Turnbull Lawyers |
| For the Crown | Mr D Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
ASHLEY JA
REDLICH JA
WEINBERG JA:
Richard Pollard, a man now aged 33, appeals by leave against sentence passed upon him by a judge in the County Court on 31 October 2014. On that day, the judge imposed sentences on charges laid by two indictments and made orders for cumulation. The result was a total effective sentence of 11 years’ imprisonment. The judge fixed a non-parole period of 7 years and 4 months’ imprisonment.
Grounds
The appellant relies upon the following grounds:
(1)the sentence imposed on the second charge on the second indictment is manifestly excessive;
(2)the direction for partial cumulation of the sentence imposed on the second charge on the second indictment breaches the principle of totality; and
(3)the sentences imposed on the first and second indictments, the total effective sentence and the non-parole period are manifestly excessive.
Summary of charges and disposition
Put shortly, the charges laid against the appellant, the sentences imposed, and orders for cumulation, were as follows:
Charge Offence Maximum Sentence Cumulation First Indictment – D10029924 1 Trafficking in a commercial quantity of drug of dependence (MDMA) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA] 25 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA] 5 years Base 2 Trafficking in a commercial quantity of a drug of dependence (Methylamphetamine) 25 years 5 years 2 years
Charge Offence Maximum Sentence Cumulation 3 Trafficking in a drug of dependence (Fentanyl) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC] 15 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC 2 years - 4 Trafficking in a drug of dependence (Cocaine) 15 years 2 years - 5 Trafficking in a drug of dependence (Cannabis) 15 years 3 years 1 year 6 Trafficking in a drug of dependence (Ketamine) 15 years 2 years - 7 Trafficking in a drug of dependence (Diethyltryptamine) 15 years 1 year - 8 Possession of a drug of dependence (Methorphan) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73] 5 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73] 6 months - Uplifted Summary Charge 46 Possession of a schedule 4 poison (Sildenfil) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 36B(2)] 10 penalty units $200 fine - Uplifted Summary Charge 47 Possession of a schedule 4 poison (Dapoxetine) 10 penalty units $200 fine - Uplifted Summary Charge 49 Possession of a schedule 4 poison (Desvenlafaxine) 10 penalty units $200 fine - Uplifted Summary Charge 53 Dealing with property suspected of being proceeds of crime [Crimes Act 1958 (Vic) s 195] 2 years [Crimes Act 1958 (Vic) s 195] 1 year - Uplifted Summary Charge 66 Use false document [Crimes Act 1958 (Vic) s 83A(2)] 2 years [Crimes Act 1958 (Vic) s 83A(2) as read with the Criminal Procedure Act 2009 (Vic) s 242(6)] 1 year -
Charge Offence Maximum Sentence Cumulation Uplifted Summary Charge 67 Possession of a schedule 9 poison (2,5-Dimethoxy-4-iodophenethylamine) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 36B(2)] 10 penalty units $200 - Second Indictment – D13755909 1 Trafficking in a drug of dependence (MDMA) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC] 15 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC] 3 years 1.5 years 2 Trafficking in a drug of dependence (Methylamphetamine) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC] 15 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC] 3 years 1.5 years 3 Possession of a drug of dependence (Lysergic acid) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73] 5 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73] 1 year - Uplifted Summary Charge 4 Dealing with property suspected of being proceeds of crime [Crimes Act 1958 (Vic) s 195] 2 years [Crimes Act 1958 (Vic) s 195 1 year - Uplifted Summary Charge 6 Use false information to facilitate the commission of an indictable offence [Crimes Act 1958 (Vic) s 192C(1)] 2 years [Crimes Act 1958 (Vic) s 192C(1)] as read with the Criminal Procedure Act 2009 (Vic) s 242(6)] 3 months - Circumstances of offending
On 28 December 2012, police executed a search warrant at the appellant’s home. During the search, a large number of different drugs of dependence were located. Also located were records which showed that the appellant had trafficked different drugs over different periods of time, mostly by using the on-line site ‘Silk Road’. When, and in what quantities, the various drugs had been trafficked on Silk Road founded the detail of most of the charges laid. In all but one instance, the last date of trafficking was fixed as 28 December 2012. In all but one instance, the trafficking was alleged on a Giretti[1] basis, there being varying commencement dates. In the case of charge 1 on the first indictment, the commencement date stretched as far back as 9 August 2012. In the one instance of non-Giretti trafficking, the offence alleged was by possession for sale on 28 December. There was also a possession charge which related solely to that date.
[1]Giretti v The Queen (1986) 24 A Crim R 112.
The offending just described was the subject of the charges on the first indictment. Also dealt with at time of sentence on that indictment were a number of uplifted summary charges. They related, for the most part, to other drugs possessed by the appellant on 28 December 2012, being found at his home when it was searched.
The offending which was the subject of the second indictment arose in consequence of the appellant’s motor vehicle being searched on 11 December 2013, and his home being searched later that day. The charges on that indictment alleged offences committed on that one day. This contrasted with most of the trafficking charges on the first indictment. Also dealt with at time of sentence on the second indictment were two uplifted summary charges.
The judge summarised the offending this way in his sentencing remarks:
In November of 2012 you were a person of interest to police in relation to possible drug offences. On 28 December 2012 police executed a search warrant at two properties linked to you and a large number of different drugs of dependence were located. You assisted police in identifying the various drugs. Police also located computer equipment and print outs from a website known as “Silk Road” and these showed names, addresses and orders for different drugs. Express Post serial labels and 2 express post parcels with a DVD case were also located. The prosecution summary sets out all of the items located by police.
You were operating a relatively large and sophisticated drug trafficking business. All of the evidence points to a planned and well thought out drug trafficking operation in respect of which you kept detailed records. You used the website Silk Road to acquire and on sell a variety of drugs which you delivered mainly by using Express Post. You also sold some drugs on a person to person basis. You also cultivated cannabis for trafficking and the amount you possessed forms the basis of Charge 5. Police located 61 cannabis plants growing under 3 hydroponic systems. An examination of the computer you used located 3 electronic wallets containing 24,518.4777721 bit coins. I was told by Mr Saunders these bit coins had a value in excess of $700,000. When arrested you had in your possession more than $58,000 in cash. You operated numerous post office boxes under an alias to provide anonymity and to divert attention away from the volume of mail you were sending and receiving.
The prosecution summary of charges makes it clear your offending was on a relatively large scale and was well planned. The system of drug trafficking you engaged in meant you operated an effective one stop shop where a variety of drugs could be purchased on-line. Whilst I accept you have been a long term drug user, and your offending occurred in the context of drug use which may have obscured normal clear thinking on your part, I have no doubt your principal purpose in trafficking drugs was to make money. This is not a case where you trafficked to satisfy your habit with some money or drugs left over. Here it would appear that when first arrested you had in your possession a quantity of drugs in stock as well as a considerable amount of money both in cash and in bit coin format.
The amount of MDMA trafficked by you in charge 1 on the first indictment was 2.79 kg. Whilst that amount exceeds the large commercial threshold the prosecution accepts that it cannot prove beyond reasonable doubt that you had an intention to traffick a large commercial quantity of the drug MDMA at the start of the charge period.
The amount of methamphetamine or ice trafficked by you in charge 2 on the first indictment was 876 grams.
In charge 3 on the first indictment the amount of fentanyl trafficked by you was 450 mg representing 6 orders between 15 August and 12 September, 2012.
In charge 4 you trafficked or had in your possession for trafficking a total of 44 grams of cocaine between 19 September 2012 and 28 December 2012.
In charge 5 on the first indictment you trafficked or had in your possession for trafficking a total of 27.65 kg of cannabis between 28 September 2012 and 28 December 2012. Whilst 27.65 kg is over the threshold for a commercial quantity the prosecution accepts that it cannot prove beyond reasonable doubt that you had an intention to traffick a commercial quantity of cannabis at the start of the charge period.
In charge 6 on the first indictment you trafficked or had in your possession for trafficking a total of 30.2 grams of Ketamine between 26 September 2012 and 28 December 2012.
In charge 7 on the first indictment you had in your possession for trafficking 165.9 grams of a mixed substance containing N, N dietnyltryptamine (113 grams pure where .5 of a gram is a traffickable quantity).
In charge 8 on the first indictment you had .9 of a gram of methorphan in your possession.
Of the summary charges related to the first indictment, you possessed the poisons Sildenafil (charge 46), Dapoxetine (charge 47), Quietapine (charge 48), Desvenlaxafine (charge 49) and 2, 5-Dimethoxy-4iodophenethylamine in tablet and powder form (charge 67).
Summary charge 53 relates to the bit coins and the $58,390 cash found in your possession suspected of being the proceeds of crime. These items are presently the subject of a restraining order under the Confiscation Act 1997 and upon conviction will be automatically forfeited.
Summary charge 66 relates to using a false name to open a post office box.
You were arrested and interviewed on 28 December 2012 and later that day you were released on bail with reporting conditions. Whilst you generally cooperated with the police at first you did not make full admissions as is your right.
The charges on the second indictment and, the related summary charges, concern your offending on 11 December 2013 whilst you were on bail. The maximum penalty for each of charges 1 and 2 on the second indictment is 15 years imprisonment. The maximum penalty for the offending in charge 3 is 5 years imprisonment. Again if you satisfy the court on the balance of probabilities that you did not possess the named drug for any purpose related to trafficking then the maximum penalty is only one year. You did not lead any evidence to attempt to satisfy me.
As to the related summary charges, charges 4 and 6 each has a maximum penalty of two (2) years imprisonment.
I briefly summarise your offending in the second indictment and the summary charges related to it. On 11 December 2013 you were intercepted whilst driving a vehicle for a random licence check and breath test. Drugs, cash and other paraphernalia related to drugs was located in your possession. A later systematic search of the vehicle revealed you had total cash in your possession of $8,215 which included $4,000 hidden in your sock, two bank deposit slips each for $9,950 and computer equipment. A later search of your house revealed bank deposit slips and other records that showed that at the time of your arrest on 11 December 2013 you were again trafficking in drugs much as you had been when you were first arrested almost a year earlier.
In charge 1 on the second indictment you trafficked by having in your possession for the purposes of sale 444.5 grams of MDMA.
In charge 2 on the second indictment you trafficked by having in your possession for the purposes of sale 5.2 grams of methamphetamine.
In charge 3 on the second indictment you had in your possession 2.64 grams of LSD.
Summary charge 4 relates to $8,215 found in your possession when your vehicle was intercepted. Summary charge 6 relates to the finding of a Victorian driver’s licence in another person’s name at your home.[2]
[2]DPP v Pollard (Unreported, County Court of Victoria, Judge Lacava, 31 October 2014) [21]–[42]
On 11 December 2013, the appellant was on bail in respect of the offending the subject of the first indictment. This meant that s 16(3C) of the Sentencing Act 1991 was in point when the judge came to impose sentence for the charges on the second indictment.
Submissions
It was submitted for the appellant, in support of ground one, that the offending the subject of charge 2 on the second indictment concerned a matter which is almost always prosecuted in the Magistrates’ Court, and one in which, absent prior convictions, the penalty is most often a fine or the making of a community correction order. Acknowledging that the circumstances of this offending were more serious than the situation just described, counsel submitted that the sentence imposed was nonetheless far outside the range available in the sound exercise of the sentencing discretion.
With respect to ground two, counsel submitted that, notwithstanding the application of s 16(3C) of the Sentencing Act 1991, the principle of totality remained of relevance and must not be wholly disregarded. The extent of cumulation ordered should reflect the amount of criminality which the offender’s commission of the particular offence contributed to the overall criminality of the entire offending. Here, counsel submitted, the offending the subject of charge 2 on the second indictment added very little, if anything, to the totality of the appellant’s criminality. He accepted, however, that he might have no valid complaint about the extent of cumulation directed by the judge if his challenge to the sentence imposed on charge 2 succeeded.
With respect to ground three, counsel submitted that the total effective sentence arrived at on the first indictment – although it was not expressed that way in the sentence imposed – was manifestly excessive. That was attributable to the orders for cumulation. He argued that the individual sentences were themselves stern; and that the orders for cumulation combined with the stern sentences produced an outcome which was manifestly excessive.
Counsel further submitted that the sentences on the second indictment were respectively stern (in the case of the sentence on charge 1) and manifestly excessive (in the case of the sentence on charge 2). The orders for cumulation again combined to produce a manifestly excessive outcome. That must be the case, we interpolate, if the sentence on the second charge was itself manifestly excessive.
In all, counsel submitted, the total effective sentence at which the judge arrived reflected sentences such as are imposed for trafficking large commercial quantities of illicit drugs, not trafficking of the extent ultimately alleged by the Crown.
Counsel for the Crown submitted, respecting ground one, that there are instances in which courts have imposed sentences of three years for trafficking small quantities of methylamphetamine. The antecedent history of the appellant was of importance. Moreover, the judge was entitled to have regard to the overall circumstances in which the offence was committed, so as to put the offending into a more realistic context. The sentence was not outside the range reasonably available.
With respect to ground two, counsel submitted that the principle of totality required substantial modification in the circumstances of the case. Section 16(3C) of the Sentencing Act had to be respected. Substantial cumulation of the sentences imposed on the charges on the second indictment was required. Specifically with respect to charge 2 on that indictment, the offending manifested a continuing disobedience to the law. The criminality involved in that charge was not so much dependent on the quantity of the drug trafficked as by the fact that the appellant was on bail for offending of precisely the same kind, and that his offending conduct on this occasion manifested wanton disobedience and contempt for the law. That justified the cumulation imposed.
As to the complaint raised by ground three, counsel for the Crown submitted that the sentences imposed on charges 1 and 2 on the first indictment had been well open. The appellant was not to be punished for trafficking in a large commercial quantity of any drug, proof of necessary intent being lacking. Nonetheless, the offending comprehended by charges 1 and 2 was very serious. The same could be said of the offending comprehended by charge 5. Overall, the criminality involved in the commission of the offences on the first indictment had been very serious indeed, involving the trafficking of multiple drugs. The judge had kept totality in mind. The orders for cumulation had been modest. On a number of occasions, his Honour had made no order for cumulation.
Counsel submitted that the quantity of MDMA trafficked (the subject of charge 1 on the second indictment) was also large. The sentence imposed was within range. Further, although the trafficking the subject of charges 1 and 2 was confined to a single day, there was evidence that the appellant was again operating a drug trafficking business. The circumstances in which the drugs were found were relevant to show that the seizures were made in the context of significant trafficking by the appellant.
Overall, counsel submitted, the sentences imposed, and the overall head sentence and non-parole period, did not offend the goal of consistency in sentencing. The judge, counsel added, had identified all relevant mitigating factors.
Conclusions
It was relevant for the judge to take into account the fact that the charges the subject of the second indictment were committed whilst the appellant was on bail, and were of the same nature as the charges on the first indictment. Evidence implying that the appellant had gone back into the business of drug trafficking was relevant to show that the trafficking charges on the second indictment were not isolated instances of offending. Even so, the quantity of the drug which was the subject of the second charge on that indictment was not deprived of relevance. It starkly contrasted with the quantity of the drug the subject of charge 1 — that is, 5.2 grams by contrast with 444.5 grams; yet the same sentence was imposed in each instance. As a matter of logic, if the quantity of a drug trafficked was inconsequential to sentences imposed on the second indictment, the same sentence would have been appropriate in the case of charge 3, where again a small quantity of a drug was involved. Yet, that was not the case with the sentence passed on charge 3.
We further consider that the sentence on charge 1 on the second indictment was not out of kilter with the sentences passed on the first indictment. That charge involved trafficking a substantial quantity of MDMA, committed whilst the appellant was on bail. It was offending of the same nature as on the first occasion, and in the circumstances could not be said to be an isolated incident of offending.
Considering all these matters, in our opinion something went seriously wrong with respect to the sentence imposed on charge 2 on the second indictment. In truth, it was anomalous. It was manifestly excessive.
It follows from what we have said that in our opinion ground one is established. On charge 2 on the second indictment, having allowed the appeal, we would impose a sentence of six months’ imprisonment. It is true that this is less than the sentence passed on charge 3 on that indictment. But, no cumulation having been ordered with respect to the sentence on charge 3, the propriety of the sentence imposed was not debated; and it is unnecessary to say more about it.
Our conclusion that the appellant should be re-sentenced on charge 2 has implications for ground two. The amount of cumulation must be reduced. But in our opinion the extent of cumulation should be unaltered.
We turn to ground three. The submission was advanced for the appellant that the orders for cumulation which the judge made, with respect to sentences on the first and second indictments, produced a total effective sentence which infringed the totality principle.
Before going on, we briefly digress to draw attention to the way in which the judge structured the sentence. As can be seen in the table which forms part of [3] above, his Honour fixed the sentence on charge 1 on the first indictment as the base sentence and then cumulated upon it parts of the sentences imposed on charges 2 and 5 on that indictment, and parts of the sentences on charges 1 and 2 on the second indictment. Thereby he arrived at a total effective sentence, in respect of which he fixed a non-parole period.
All of the offending conduct consisted of, or was connected with, trafficking or possession of drugs. Despite the disconnect in time, all of the charges could have been joined on a single indictment. Particularly that was so where the appellant intended to plead guilty. Two quite separate tranches of criminality were comprehended by the offences charged on the two indictments, and in respect of each tranche of criminality different aggravating and mitigating circumstances applied. A judge must have been very careful, in such circumstances, not to permit irrelevant matters to creep into his or her consideration of a particular tranche of criminality. But, that said, a single indictment had the potential to simplify the sentencing process.
However, two indictments were laid here; and the judge fixed a base sentence on one indictment and cumulated parts of sentences imposed on both indictments. Such a course was approved in The Queen v Nobile.[3] It was also the course taken by the sentencing judge in The Queen v INS,[4] and it attracted no criticism by this Court.[5]
[3][2006] VSCA 211, [2]-[4] (Nettle JA), [42]–[43] (Coldrey AJA). There, the sentencing judge purported to cumulate parts of sentences on two presentments, and to cumulate part of the overall sentence on one presentment on the total effective sentence on the other. But he had fixed no base sentence on the first presentment, which gave rise to a contention of error of the kind dealt with in R v Nikodjevic [2004] VSCA 222. The Court concluded, however, that what the judge had been trying to do was to fix a base sentence on one presentment and then cumulate parts of the sentences on that and the other presentment on the base sentence. So approached, the Court said, there was no error.
[4][2009] VSCA 61.
[5]Albeit that the propriety of the course was not directly challenged on the appeal.
Although the course which the judge took was permissible, we do consider that in the circumstances of this matter the preferable course was for his Honour to have sentenced the appellant separately on each indictment (dealing, inter alia, with cumulation), acting upon the facts and circumstances which were peculiarly relevant in that connection; and then to have made orders cumulating all or some of the effective sentence on the second indictment on the effective sentence on the first indictment, and to have fixed a non-parole period. That would, we think, have reduced the risk that circumstances relevant to only one indictment might influence sentence on the other indictment.
Sentencing in that way, counsel informed us, is nowadays almost always the course taken when sentence is passed on more than one indictment at the same time. It is a course akin to that which would be obligatory if the offender was to be sentenced on separate indictments for State and Commonwealth offences.
That said, we return to the complaints which the appellant made with respect to cumulation. We will consider them in the context that, as we have concluded, the sentence imposed on charge 2 on the second indictment was manifestly excessive; and that, upon that charge, we would impose a sentence of six months’ imprisonment.
If the same extent of cumulation were applied to the sentence which we propose on charge 2 on the second indictment, it would yield, without any other alteration to the orders for cumulation, a total effective sentence of nine years’ and nine months imprisonment.
So the question becomes, as we see it, whether a process of cumulation which would lead to a head sentence of that size would produce a head term which was manifestly excessive, being disproportionate to the criminality involved, and which would offend totality.
The appellant embarked upon a career as a drug trafficker by offending in a multi-faceted and sustained way over a period of time with a quite sophisticated business model. Senior counsel for the Crown was correct to submit that the offending comprehended by the first indictment involved ‘lots of criminality’, ‘a large number of drugs’ and ‘big quantities’. Further, the appellant’s offending on the second occasion, as counsel submitted, displayed a wanton disobedience and contempt for the law. That is so although there was limited use to which evidence that the appellant had recommenced his business of drug trafficking could be put.
There were weighty matters going in mitigation. The appellant had not previously offended, and was 30 when his criminal career commenced. His offending occurred at a juncture in his life when his personal and employment circumstances had gone off the rails. This had led to him taking illicit drugs, which may well have clouded his judgment. The appellant did plead guilty at what the Crown accepted was the earliest possible time. The judge accepted that he was remorseful for his offending. The judge concluded that he had reasonable prospects of rehabilitation. There was a good deal of evidence before the judge that the appellant had engaged in a series of worthy endeavours whilst on remand. Nonetheless, we are not persuaded, when adjustment is made for the period of cumulation referable to charge 2 on the second indictment, that the resulting total effective sentence offends totality.
Orders
We would allow the appeal on ground 1 and re-sentence the appellant to six months’ imprisonment on charge 2 on the second indictment. We would allow the appeal on grounds 2 and 3 to the extent necessary to substitute three months of the sentence which we propose on charge 2 on the second indictment on the other orders for cumulation, and on the base sentence.[6] That would produce a total effective sentence of nine years and nine months’ imprisonment. We would fix a non-parole period of six years and six months’ imprisonment.
[6]That is, following the same sentencing structure as that adopted by the judge.
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