Polos v The King - [2025] VSCA 192

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Polos v The King

Details

AGLC: Polos v The King [2025] VSCA 192
Case: [2025] VSCA 192
Decision Date: 21 August 2025

CaseChat Overview and Summary

The appeal before the Court was brought by the applicant against his sentence, following his conviction on three charges: trafficking a drug of dependence in commercial quantity, possessing a drug of dependence, and failing to comply with a direction to assist. The matter was heard in the Court of Appeal. The applicant challenged the sentence imposed by the trial judge, arguing it was manifestly inadequate and excessive. The central legal issues before the Court were whether the trial judge correctly identified the principal purpose of sentencing in respect of the trafficking charge, and whether the sentence imposed on the second charge was appropriate given the factual basis.

The Court found that the trial judge erred in considering the protection of the community as the principal purpose of sentencing in relation to the trafficking charge. The Court also held that the judge erred in imposing a sentence on the second charge based on the factual premise that the quantity involved exceeded a large commercial quantity. These errors rendered the sentencing exercise flawed. The Court further found that the objective gravity of the offending was mid-range, and the mitigating factors of the applicant's cognitive impairments and difficult childhood, while relevant, did not significantly reduce his moral culpability. Consequently, the Court allowed the appeal and resentenced the applicant to a total effective sentence of 7 years and 3 months' imprisonment.

The Court's decision was informed by several precedents, including R v Verdins, DPP v Richardson, DPP v Fatho, Danaf v The Queen, and Gayed v The Queen. These cases provided guidance on the principles of sentencing and the appropriate weight to be given to various factors, including the objective gravity of the offending and the moral culpability of the offender. The Court's re-sentencing was based on a thorough analysis of these factors, ensuring that the sentence was commensurate with the seriousness of the offences committed by the applicant.

Orders