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Polos v The King

Polos v The King

Case [2022] VSCA 258 24 November 2022

Sentencing

Criminal Liability

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0009

RAYAN POLOS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2022
DATE OF JUDGMENT:	24 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 258
JUDGMENT APPEALED FROM:	[2021] VCC 1506 (Judge Hannebery)

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CRIMINAL LAW – Extension of time – Leave to appeal – Sentence – Principle of totality –Applicant’s parole cancelled as a result of commission of offences – Whether judge failed to take into account entire period of imprisonment for prior offending – Sentence properly moderated by principle of totality – Sentencing Act 1996, s 16(3B).

CRIMINAL LAW – Extension of time – Leave to appeal – Sentence – Gravity of offending – Applicant sentenced for trafficking in a drug of dependence in not less than a commercial quantity, among other offences – Whether gravity of offending assessed by reference to commercial quantity of pure methylamphetamine or mixture of methylamphetamine – No error in assessing gravity of offending by comparing proportion of mixture consisting of pure methylamphetamine with commercial quantity of pure methylamphetamine.

CRIMINAL LAW – Extension of time – Leave to appeal – Sentence – Applicant arranged for surrender of substantial number weapons to police – Whether discount for applicant’s cooperation more than ‘necessarily limited’ – Discount for cooperation ‘necessarily limited’ on the basis that cooperation would not lead to any investigation or prosecution – Underlying fact accurate and not irrelevant to assessment of level and value of assistance – Extension of time refused.

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Counsel
Applicant:		Mr OP Holdenson KC
Respondent:		Ms DI Piekusis KC with Mr J Johnston
Solicitors
Applicant:	Milides Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

Following his plea of guilty the applicant was sentenced in the County Court for a number of drug trafficking offences. At the time he was arrested he was involved in a physical altercation with police that led him to be charged with the offence of resisting an emergency worker on duty. He also pleaded guilty to that charge, a charge of handling stolen goods and some summary charges.
On 7 October 2021, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment
1	Trafficking in a drug of dependence ― commercial quantity	25 years	3 years 3 months	Base
2	Trafficking in a drug of dependence	15 years	1 year 3 months	3 months
3	Possession of a drug of dependence	5 years	Convicted and fined $250	N/A
4	Trafficking in a drug of dependence	15 years	1 year 6 months	3 months
5	Resisting an emergency worker on duty	5 years	6 months	―
6	Handling stolen goods	15 years	2 months	―
Related summary offences
8	Dealing with property suspected of being proceeds of crime	2 years	1 month	―
14	Breaching a prescribed term of a parole order	3 months	1 month	―
15	Possessing cartridge ammunition without a licence or…

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 [2022] VSCA 258
Case: [2022] VSCA 258
Decision Date: 24 November 2022

CaseChat Overview and Summary

Polos v The King involved the applicant appealing against the refusal to grant an extension of time to lodge an appeal against his sentence. The applicant was sentenced for various offences, including trafficking in a drug of dependence in a commercial quantity. He argued that the trial judge had failed to consider the entire period of his imprisonment for prior offences and that the gravity of his offending was assessed incorrectly. Additionally, the applicant contended that the discount for his cooperation in surrendering weapons was inadequate.

The legal issues before the court were whether the trial judge failed to consider the principle of totality in the applicant's sentencing, whether the gravity of the drug trafficking offence was assessed correctly, and whether the discount for cooperation was appropriately applied. The court examined the sentencing principles, the relevant statutory provisions, and the specifics of the applicant's conduct in determining these issues.

The court found that the trial judge had properly applied the principle of totality, considering the entire period of the applicant's imprisonment for prior offences. Regarding the gravity of the drug trafficking offence, the court determined that there was no error in assessing the gravity by comparing the proportion of pure methylamphetamine in the mixture with the commercial quantity of pure methylamphetamine. Furthermore, the court held that the discount for the applicant's cooperation was 'necessarily limited' as his cooperation did not lead to any investigation or prosecution. The court concluded that the underlying fact was accurate and relevant to the assessment of the level and value of the applicant's assistance.

As a result of the court's decision, the application for leave to appeal was dismissed, and an extension of time was refused. The original sentence and the trial judge's assessment of the case remained upheld.

Orders