Polos v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0069

IVAN POLOS	Applicant
v
THE KING	Respondent

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JUDGES:	Emerton P and Lyons JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2025
DATE OF JUDGMENT:	21 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 192
JUDGMENT APPEALED FROM:	[2023] VCC 2422 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Traffick drug of dependence in commercial quantity – Possess drug of dependence – Deal with property suspected of being proceeds of crime – Fail to comply with direction to assist – Applicant incorrectly sentenced as serious drug offender on charge 1 – Judge erred in regarding protection of community as principal sentencing purpose in respect of charge 1 – Judge erred in imposing sentence on charge 2 on factual basis that quantity was in excess of large commercial quantity – Sentencing exercise vitiated – Appeal allowed – Objective gravity of offending mid-range – Verdins not enlivened – Moral culpability for offending high despite cognitive impairments and difficult childhood – Applicant resentenced to total effective sentence of 7 years and 3 months’ imprisonment.

Sentencing Act 1991, ss 6B, 6D(a), 6E.

R v Verdins (2007) 16 VR 269; DPP v Richardson [2023] VSCA 241; DPP v Fatho [2019] VSCA 311; Danaf v The Queen [2020] VSCA 226; Gayed v The Queen [2021] VSCA 141, considered.

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Counsel
Applicant:		Mr O P Holdenson KC
Respondent:		Ms J Warren
Solicitors
Applicant:	Theo Magazis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
LYONS JA:

On 28 September 2023, the applicant pleaded guilty to two charges of trafficking in a drug of dependence (commercial quantity), one charge of possession of a drug of dependence, one charge of dealing with property suspected of being proceeds of crime and one charge of failing to comply with a direction to assist.
On 22 December 2023, the applicant was sentenced in the County Court of Victoria as follows:

Charge on Indictment M12481856	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence – commercial quantity[1]	25 years’ imprisonment	6 years and 6 months’ imprisonment	Base
2	Trafficking in a drug of dependence – commercial quantity[2]	25 years’ imprisonment	4 years’ imprisonment	20 months
3	Possession of a drug of dependence[3]	5 years’ imprisonment or 400 penalty units	9 months’ imprisonment	3 months
Related Summary Offences
5	Dealing with property suspected as being the proceeds of crime[4]	2 years’ imprisonment	6 months’ imprisonment	2 months
6	Fail to comply with direction to assist[5]	2 years’ imprisonment	3 months’ imprisonment	1 month
Total Effective Sentence:		8 years 8 months’ imprisonment
Non-Parole Period:		5 years 5 months
Pre-sentence Detention Declared:		751 days
Section 6AAA Statement:		Total Effective Sentence 11 years’ imprisonment. Non Parole-Period 8 years.
Other Relevant Orders: 1. Forfeiture and Disposal orders. 2. Sentenced as a serious drug offender on charges 1 and 2 pursuant to s 6F of the Sentencing Act 1991.

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

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

[3]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.

[4]Contrary to s 195 of the Crimes Act 1958.

[5]Contrary to s 465AAA(4) of the Crimes Act 1958.

The applicant now seeks leave to appeal his sentence on the following grounds:
Ground 1: The learned sentencing judge erred in the exercise of her discretion in imposing sentence on charge 1 on the indictment on the basis that the applicant fell to be sentenced on that charge as a ‘serious drug offender’ for the purposes of Part 2A of the Sentencing Act 1991.
Ground 2: The learned sentencing judge erred in the exercise of her discretion in imposing sentence on charge 2 on the factual basis that the amounts of the methylamphetamine identified in the phone calls and messages were in excess of a large commercial quantity for methylamphetamine (in a mixture).
Ground 3: The individual sentence imposed on charge 1 on the indictment, namely, 6 years and 6 months’ imprisonment is, in all the circumstances of the case, manifestly excessive.
Charge 4: The total effective sentence imposed, namely, 8 years and 8 months’ imprisonment is, in all the circumstances of the case, manifestly excessive.
Grounds 1 and 2 are made out, as is conceded by the respondent.
In sentencing the applicant on charge 1, the judge stated that he fell to be sentenced as a ‘serious offender’ pursuant to s 6B of the Sentencing Act 1991. That had the consequence that, as required by s 6D(a), in determining the length of his sentence, the judge had to regard the protection of the community as the principal purpose for which the sentence was imposed.
However, the applicant was not a ‘serious offender’ as defined in s 6B(2) of the Sentencing Act because he had not previously been convicted of a ‘drug offence’ as defined in s 6B(1). None of the applicant’s prior convictions are for offences to which cl 4 of sch 1 of the Sentencing Act applies. While the applicant has previous convictions for drug trafficking, they were all for trafficking simpliciter.
The respondent concedes that, having regard to the prominence given to the serious drug offender provisions in the Sentencing Act in the judge’s sentencing reasons, the erroneous characterisation of the applicant as a serious drug offender for the purpose of imposing sentence on charge 1 could have been material to the judge’s process of reasoning and the sentence imposed. The respondent also points out that the presumption of cumulation required by s 6E of the Sentencing Act would affect the application of the totality principle. The respondent therefore concedes that the error vitiates the sentence.
Notwithstanding the error, the respondent submits that the individual sentence imposed on charge 1 and the total effective sentence were appropriate and no lesser sentence should be imposed.
We accept that the sentencing exercise with respect to charge 1, for which protection of the community was regarded as the principal purpose of sentencing, is vitiated. As the sentence on charge 1 is the base sentence, the entire exercise of the sentencing discretion is vitiated. It is necessary to resentence on all charges.
As to ground 2, we accept that the judge erred in stating that the amount of methylamphetamine the subject of charge 2 was ‘in excess of a large commercial quantity’.[6] During the period of the applicant’s offending, pt 3 of sch 11 of the Drugs, Poisons and Controlled Substances Act 1981 specified that the ‘commercial quantity’ for a quantity of a mixture of methylamphetamine was 250 grams and the ‘large commercial quantity’ for a quantity of a mixture of methylamphetamine was 750 grams. We will resentence on the basis that the quantity of methylamphetamine was a commercial quantity.
[6]DPP v Polos [2023] VCC 2422, [8] (‘Reasons’).
Again, the respondent submits that, despite the error, no different sentence should be imposed on charge 2.

Resentencing

The offending

The circumstances of the offending are set out in the Summary of Prosecution Opening and in the judge’s reasons for sentence at paragraphs [4] to [11].
In summary, between 6 September 2021 and 1 December 2021, the applicant trafficked drugs of dependence from his own home, his mother’s home and from various motor vehicles which were rented, privately owned, stolen or registered in the names of third parties. He was assisted by two co-offenders, Jessica Kemp and Patricia Martin. Among other things, Kemp and Martin assisted the applicant by collecting money owed by third parties after a drug transaction had been conducted and when the applicant was unable to meet the third party to conduct the arranged transactions.
During the period of the offending a number of phone calls and SMS messages were intercepted. The messages related to the trafficking of 43.90 kilograms of 1,4‑Butanediol and 468.37 grams of methylamphetamine.
On 25 November 2021 and 1 December 2021, search warrants were executed. The applicant was arrested on 1 December 2021. A total of 5.045 kilograms of 1,4‑Butanediol was located and seized; a total of 38.1 grams of methylamphetamine was located and seized; and a total of 2.6 grams of 3,4-Methylenedioxy-N-Methylamphetamine (‘MDMA’) was located and seized.
The amounts of drugs seized were aggregated with the amounts referred to in the phone calls and text messages. Before us, it was accepted that charge 1 is for trafficking 1,4‑Butanediol in a total quantity of 48.945 kilograms; charge 2 is for trafficking methylamphetamine in a total quantity of 506.47 grams (mixed); and charge 3 is for possession of 2.6 grams of MDMA.
Summary charge 5 relates to $3,815 in cash, $1,365 of which the applicant had in his wallet when he was arrested and $2,450 of which was located by police at his home. Summary charge 6 relates to the applicant’s refusal to provide a PIN number for the mobile phones used by him in the course of his offending.

Personal circumstances

At the time of sentencing the applicant was 33 years of age. He is married with three young children. His wife continues to be supportive of him. He also enjoys the support of other family members.[7]
[7]Reasons, [70(c)(ii)].
The applicant has a complex personal history. Based on the histories provided by the applicant to the experts who assessed his mental state and cognitive abilities, the applicant and his family fled Iraq when he was four or five years old. His father was an alcoholic with a gambling problem. The applicant struggled to learn English and to progress at school. He was ultimately expelled from school in year 8. Defence counsel told the sentencing judge on the plea that the applicant commenced using methylamphetamine when he was 16 years old and was using the drug daily by the age of 17. When he was 25 years old, the applicant began to rely on 1,4-Butanediol to manage his mood.[8]
[8]Reasons, [15(b)–(c)].
A large number of psychological reports were tendered and/or referred to on the plea.[9] The sentencing judge analysed the reports in considerable detail, in the course of which her Honour identified numerous discrepancies in the histories given by the applicant.[10]
[9]Report of Ms Carla Ferrari, forensic psychologist, dated 29 August 2022; report of Dr Sara Fratti, senior clinical neurologist, dated 24 April 2023; report of Mr Luke Armstrong, consulting psychologist, dated 24 September 2023; report of Dr Aaron Cunningham (relied on by Dr Fratti and Mr Armstrong), forensic psychologist, dated 11 November 2015; and report of Mr Warren Simmons (relied on by Mr Armstrong), consulting psychologist, dated 6 August 2019.
[10]Reasons, [30]–[31], [70].
It is tolerably clear, however, that the applicant suffers from a long-standing learning disability, symptoms of Post‑Traumatic Stress Disorder (‘PTSD’) and persistent depression. He has been assessed as having a full scale IQ of 70 and diagnosed with a mild acquired brain injury. The applicant’s IQ qualifies as a mild cognitive impairment and places him in the extremely low to borderline range of intelligence.[11]
[11]Reasons, [15(f)], [16].
In addition, since 2005 the applicant has suffered from Crohn’s disease, which causes him to suffer unpleasant, painful and embarrassing symptoms that have become increasingly debilitating and necessitated periods of hospitalisation and surgery. Although it is incurable, there is some question as to whether the applicant has taken advantage of the medical options available to him to treat the condition and lessen the severity of his symptoms.[12]
[12]Reasons, [70(c)(i)].
The applicant has a limited work history. He reported that when he left school, he worked for a few years in his father’s stonemasonry business. He was also periodically engaged in purchasing cars at auction, doing them up, and selling them for a profit. Before the COVID-19 pandemic, the applicant also tried to set up some form of tow‑truck business, which did not come to fruition because of the pandemic restrictions. It is apparent that the applicant’s work history is limited and that much of his regular income, used to support himself and his family as well as his drug habit, has been derived from trafficking drugs.[13]
[13]Reasons, [70(c)(iii)].
The applicant has quite an extensive criminal history. He has received a variety of sentences — imprisonment, a suspended sentence and a Community Correction Order (‘CCO’) — for drug, dishonesty and driving offences. He has four prior convictions for trafficking drugs: in 2012, 2016, 2019 and 2021.[14] In 2021, he contravened the CCO and the order was varied to continue to 3 February 2023. The applicant was therefore subject to the CCO at the time of the instant offending.[15]

Submissions

[14]Reasons, [76].

[15]Reasons, [13], [20].

The applicant submits that a different sentence should be imposed for the offending. He submits that in light of the mitigating factors relied on by him and accepted by the judge, the sentence in respect of charge 1 was manifestly excessive. These factors include:
(a)The applicant pleaded guilty to the charges on the morning of the contested committal proceeding and he was therefore entitled to a discount for the utilitarian benefit of these pleas. He was also entitled to an additional utilitarian benefit by reason of the COVID-19 pandemic;
(b)The applicant suffered mental ill-health which would make serving a custodial sentence more onerous. There was a risk that this mental health would worsen in prison. Importantly, his moral culpability was reduced as a result of mental ill‑health;
(c)The applicant has a mild cognitive impairment;
(d)The applicant’s Crohn’s disease would make serving a custodial sentence more onerous; and
(e)There were some matters in favour of the applicant’s rehabilitation, namely, skills and family support.
As to current sentencing practice, the applicant points principally to the sentence in DPP v Richardson,[16] where the offender pleaded guilty to several drug offences, including one charge of attempt to traffick 1,4-Butanediol in a large commercial quantity. The amount the offender attempted to traffick was five times the amount of a large commercial quantity. The offender received a sentence of 4 years’ imprisonment, which was affirmed by this Court on appeal.
[16][2023] VSCA 241.
The applicant also points to the terms of imprisonment imposed for trafficking larger quantities of 1,4-Butanediol in DPP v Fatho,[17] Danaf v The Queen[18] and Gayed v The Queen.[19] In Fatho, the respondent was resentenced by this Court to 8 years’ imprisonment for trafficking 1,402 kilograms of 1,4-Butanediol, which was 700 times the commercial quantity. The respondent was the principal of a drug trafficking syndicate and committed the offence while on bail. In Danaf, the applicant was sentenced to 5 years and 6 months’ imprisonment for trafficking 447 kilograms of 1,4‑Butanediol, which was 220 times the commercial quantity. The applicant engaged in the offending for profit and was on a CCO at the time of the offending. His sentence was affirmed by this Court on appeal. In Gayed, the applicant, who was a principal offender, received a sentence of 7 years’ imprisonment for trafficking 279 kilograms of 1,4-Butanediol.
[17][2019] VSCA 311 (‘Fatho’).
[18][2020] VSCA 226 (‘Danaf’).
[19][2021] VSCA 141 (‘Gayed’).
The respondent submits that the sentences imposed were appropriate having regard to the following matters:
(a)The quantity of drugs (48.945 kilograms of 1,4-Butanediol — 24.475 times the commercial quantity, and 506.47 grams of methylamphetamine — just over two times the commercial quantity);
(b)The applicant’s role as organiser, with two assistants and using multiple locations and vehicles;
(c)The applicant’s relevant criminal history, including numerous convictions for drug offences;
(d)The offending was committed while the applicant was undertaking a CCO;
(e)The applicant’s prospects of rehabilitation were correctly described by the judge as ‘guarded’;
(f)The need to protect the community, given the assessment of the applicant’s prospects of rehabilitation; and

(g)Current sentencing practice.

Consideration

The offending in charges 1 and 2 is serious offending. The quantities of the drugs involved are large. The quantity of 1,4-Butanediol is over 24 times the threshold for a commercial quantity; the methylamphetamine trafficked is twice the commercial quantity.[20] Methylamphetamine, in particular, is highly damaging to the individuals who use it and to the community at large.
[20]In relation to the quantities of drugs involved in the offending, senior counsel for the applicant pointed out that the correct figure for the amount of 1,4-Butanediol the subject of charge 1 was 48.945 grams and not 49.35 grams as the judge recorded in her reasons.
Senior counsel for the applicant submitted that in resentencing, the Court should bear in mind that there may have been some ‘double counting’ in the amounts referred to in the text messages and the drugs physically located and seized by the police. However, we do not understand the applicant to be submitting that the quantities of drugs were not significant and did not fall comfortably within the ‘commercial’ quantity category.
The offending was an organised drug trafficking business that involved three different premises, two phones, a number of different motor vehicles and two assistants. The applicant was the organiser of the business. The conduct charged took place over three months. Although there is no evidence of enrichment, the applicant appears to have supported himself, his drug use and his family by dealing these drugs.
Furthermore, the trafficking took place while the applicant was subject to a CCO. The applicant has a history of drug abuse and drug trafficking which is both long and persistent. Previous sentences for trafficking appear to have had little or no deterrent effect.
Having regard to these matters, we consider the objective gravity of the offending to be in the mid-range for offending of this kind. In so finding, we have taken into account that 1,4-Butanediol is often seized in much larger quantities than in the instant case, is lawful when used for its intended purpose as a cleaning product, is readily available and is not a ‘high value’ illicit drug. However, trafficking in commercial quantities of 1,4‑Butanediol and methylamphetamine is inherently serious, as is indicated by the maximum sentence of 25 years’ imprisonment for that offending. Furthermore, the applicant stands to be sentenced as a serious offender in respect of the trafficking of methylamphetamine. In determining the length of the sentence on charge 2, the protection of the community from the applicant must be the principal purpose for which the sentence is imposed.[21]
[21]Sentencing Act 1991, s 6D.
There are a number of matters in mitigation.
With one exception, both parties were content to rely on the findings made by the judge in respect of mitigation.[22] The relevant findings concerned the applicant’s early plea of guilty, the effects of his adverse mental health, cognitive and physical conditions, and his prospects of rehabilitation.
[22]The findings are set out in paragraph [70] of the Reasons. The one exception concerns the judge’s finding, on the balance of probabilities, that there was a risk the applicant’s mental health might worsen in custody. According to the respondent, there was no evidence for such a finding.

The applicant made an early plea of guilty. He indicated his intention on the morning of 25 July 2022, the day on which a contested committal was due to commence, which was only seven months after he was arrested and charged. The applicant’s plea saved the community the time and expense involved in conducting a trial and facilitated the course of justice. The plea had additional utilitarian benefit because, when it was made, the restrictions imposed during the COVID-19 pandemic had created a backlog of trials which the courts were still attempting to clear.
As discussed, there was a plethora of material on the plea concerning the applicant’s mental health and cognitive deficits. The judge was satisfied, on the balance of probabilities, that the applicant suffered long-term depressive symptoms and some symptoms of PTSD. He also has a cognitive impairment, albeit mild, that needed to be taken into account, regardless of its causation.
On the plea, defence counsel initially submitted that the applicant’s psychological and mental impairments were linked to his self-medicating, which involved the abuse of illicit drugs and alcohol from his mid-teens. Defence counsel submitted that in that sense, the applicant’s impairments were linked to his offending and that his moral culpability was reduced in accordance with limbs 1, 2, 3 and 4 of Verdins.[23] It was also submitted that the applicant’s mental health status increased the burden of imprisonment, and that there was a risk his mental health would deteriorate in custody, such that limbs 5 and 6 of Verdins applied.[24]
[23]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[24]Reasons, [15(g)–(h)].
In the event, defence counsel acknowledged that he was unable to satisfy the court, on the balance of probabilities, that the applicant’s PTSD, or any other condition, had contributed to his offending so as to enliven limb 1 of Verdins. He told the judge that he did not seek to ‘cram … into the artificial categories of Verdins’ the applicant’s physical health, mental health, drug abuse and behavioural issues. It was not possible to attribute a ‘pure contribution’ of any particular condition to the offending. Counsel submitted that the material that had been filed concerning those matters should be seen to explain ‘who [the applicant] is … why he offended and the nature of the risk of further offending that he poses’, and that they were therefore relevant to assessing his moral culpability in a general sense.[25]
[25]In this context, we note that the written submissions that were filed on behalf of the applicant on the plea also referred to DPP vHerrmann (2021) 290 A Crim R 110; [2021] VSCA 160, which stands for the proposition that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
Before us, counsel for the respondent accepted that the applicant had struggled with mental health issues from a young age and that his persistent depressive disorder, along with his PTSD, mild acquired brain injury and low IQ were relevant sentencing considerations. They went to his moral culpability, albeit only to a modest extent, as well as to the burden of imprisonment on him.
It was common ground on the plea that the applicant’s acquired brain injury and mild intellectual impairment, together with his symptoms of PTSD and depression, made serving a term of imprisonment more onerous. The applicant submitted that there was also a risk that his mental health might worsen in custody.[26] The sentencing judge accepted both submissions.[27] We accept the first submission, but not the second. There is no evidence that the applicant’s mental health may worsen in custody.
[26]Reasons, [69].
[27]Reasons, [70(b)].
In our view, while Verdins is not enlivened, the applicant stands to be resentenced on the basis that his cognitive impairments have a general role to play in assessing his blameworthiness, as does the difficult childhood that he experienced growing up. On the other hand, we observe that the offending — which was planned and carried out over a period of three months — demonstrated organisational skills and a level of executive functioning that weakens the suggestion that the applicant is not fully responsible for his actions. The applicant has been repeatedly sanctioned, including by terms of imprisonment, for trafficking illicit drugs, but chose in this instance not only to re-offend, but to escalate the seriousness of the offending.
In our view, the applicant’s moral culpability for the offending is high, despite his cognitive impairments and difficult childhood, and the fact that the trafficking enterprise was not undertaken solely for profit and was apparently not especially lucrative. However, we take into account that his mental health and cognitive impairments will make the time he spends in prison more burdensome.
The applicant’s severe inflammatory bowel disease will also make his time in custody more burdensome. Crohn’s disease is a lifelong condition for which there is no cure. The judge noted the applicant’s ongoing difficulties with constipation and diarrhoea, and his history of intermittent bowel obstruction. These symptoms would be difficult to manage in a non-custodial setting. They are likely to be much harder to manage in prison.
Having regard to his criminal history, his long history of substance abuse and his lack of engagement with treatment for his Crohn’s disease and mental health issues, the applicant’s prospects of rehabilitation must be assessed as poor. The judge expressed herself to be ‘very guarded’[28] about the applicant’s prospects of rehabilitation, but recognised that in light of the fact that he has some work skills and strong family support, it would be wrong to say that he had no prospects of rehabilitation. We agree with that assessment, although we add that family support does not seem to have deterred him from re-offending in the past.
[28]Reasons, [70(c)(iii)].
We accept that the applicant has shown some remorse for his offending, although it does not cause us to modify our assessment of his prospects of rehabilitation.
In light of the foregoing, the principal sentencing considerations must be community protection, general deterrence and denunciation. Specific deterrence is also important, given the applicant’s history of offending.
We have had regard to the table of comparative cases relied on by the respondent, the cases referred to by the applicant, and the submissions made by the parties about the relevance or otherwise of those cases or parts of cases.
As noted in [9] above, given the sentence in charge 1 is the base sentence and the respondent concedes that the judge made a relevant error on charge 1, the entire exercise of the sentencing discretion on all charges is vitiated. As a result, notwithstanding there was no specific challenge to the sentence in respect of charge 3 and summary charges 5 and 6, we also resentence the applicant for these less serious charges.

Disposition

The applicant stands to be sentenced as a serious offender on charge 2, which means that the sentence must be served cumulatively unless otherwise directed by the Court. In this case, some concurrency must be applied, as the activity that forms the basis for the charges is the same business enterprise. By the same token, the trafficking of methylamphetamine gives rise to separate harm from the trafficking of 1,4‑Butanediol. The effects of methylamphetamine trafficking and use in the community are pernicious, and most likely more destructive than the effects of 1,4‑Butanediol.
The applicant will be resentenced as follows:
(a)      Charge 1   —       5 years and 6 months
(b)      Charge 2   —       4 years
(c)      Charge 3   —       6 months
(d)      Summary Charge 5            —       6 months
(e)      Summary Charge 6            —       3 months
The base sentence is a term of imprisonment of 5 years and 6 months on charge 1.
As to cumulation, 16 months of the sentence on charge 2, 2 months of the sentence on charge 3, 2 months of the sentence on summary charge 5 and 1 month of the sentence on summary charge 6 are to be served cumulatively on charge 1 and on each other.
The total effective sentence is 7 years and 3 months.
The non-parole period is 5 years.
In accordance with s 6F of the Sentencing Act, it will be entered onto the record that the applicant is sentenced as a serious drug offender in respect of charge 2.
As required by s 6AAA of the Sentencing Act, we state that had the applicant not pleaded guilty to the charges, we would have imposed a total effective sentence of 9 years and 3 months, with a non-parole period of 7 years.
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[2025] VSCA 192

21 August 2025