| 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…
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- Polos v The King [2025] VSCA 192
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- [2025] VSCA 192
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CaseChat Overview and Summary
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.
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