Polos v The King

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 permit	40 penalty units	Convicted and fined $250	N/A
16	Possessing schedule 4 poison	10 penalty units	Convicted and fined $150	N/A
25	Dangerous driving	12 months	Convicted and fined $1,500	N/A
26	Driving unlicensed	6 months	Convicted and fined $500	N/A
Total Effective Sentence:		3 years 9 months
Non-Parole Period:		2 years 9 months
Pre-sentence Detention Declared:		11 days
Section 6AAA Statement:		Total Effective Sentence 5 years 3 months Non Parole-Period 4 years
Other Relevant Orders: 1. Licence cancelled and disqualified from driving for two years from 7 October 2021 2. Forfeiture orders

At the time of this offending the applicant was on parole in relation to a sentence that had been imposed in April 2013 for very serious armed robbery offences. As a result of the present offending the applicant’s parole was cancelled and he was required to serve the balance of the 2013 sentence in prison. As will appear the fact that the applicant was on parole at the time of the present offending, and the prospect that he would be required to serve out the balance of the earlier sentence, raised a number of issues on the plea. For present purposes the most important of these issues is the extent to which the earlier sentence was relevant to the application of the principal of totality when the judge came to sentence the applicant for the present offending. We shall return to that topic.
The applicant seeks an extension of time on which to seek leave to appeal his sentence. If allowed to appeal he would propound six grounds of appeal:
(a)two grounds of appeal relate to the fact that the applicant’s parole was cancelled and he was returned to prison;
(b)two grounds of appeal relate to the judge’s assessment of the gravity of the drug offending;
(c)one ground relates to the judge’s treatment of the applicant’s cooperation with authorities; and
(d)the final ground asserts that the sentence was manifestly excessive.
As these reasons will show, none of the grounds have merit. The application for an extension of time should be refused.

The earlier offending and 2013 sentence

On 24 April 2013, the applicant was sentenced in relation to a total effective sentence of 10 years’ imprisonment with a non-parole period of 7 years for four armed robberies. As might be suggested by the term of imprisonment, which was imposed when the applicant was 19 years of age, the robberies were very serious. It appears from the reasons for sentence that the armed robberies were committed in company on licensed premises, involved the use of firearms and were executed with careful and comprehensive planning. The fourth armed robbery was committed when the applicant was on bail. It also appears that the applicant was a heavy dug user at the time and the judge noted that the applicant had ‘readily resumed substance abuse in the company of negative peers’.[1]
[1]DPP v Polos, Khoshoba & Younan [2013] VCC 2098, [72] (Judge Hampel).
On 2 October 2018, the applicant was granted parole in relation to this offending, with effect from 7 November 2018. He sentence expired on 2 November 2021. The applicant was therefore able to serve a period of 2 years, 11 months and 26 days of his sentence on parole. It was a condition of his parole that he was not to commit an indictable offence whilst on parole.

Circumstances of current offending

On 10 April 2020, police observed the applicant driving a white coloured Porsche Macan south on the Hume Highway at approximately 130 km per hour, in a signed 80 km per hour zone. The applicant was observed overtaking a vehicle on the wrong side of the road and was forced back onto the correct side of the road, after narrowly avoiding a head-on crash. At the time he did not hold a driver’s licence, as his licence had been cancelled on 23 December 2019, due to failing to complete a Drug Behaviour Change Program (Summary Charge 25: dangerous driving; and Summary Charge 26: unlicensed driving).
Police were unable to intercept the applicant but located his vehicle a short time later in a car park. Police parked behind the applicant’s vehicle and waited for additional police to arrive before approaching his vehicle. As they did so, the applicant appeared from behind some bushes in front of his vehicle. He pushed past the police officer to get into the driver’s seat of his car. He started the car despite police members directing him to exit the vehicle. He did not comply with these requests and continued to resist police. Police attempted to remove the applicant from the vehicle by pulling his legs and upper body. More police members arrived and continued to attempt to remove him from the vehicle.
The applicant continued to resist police and exited the vehicle trying to flee towards the rear of the vehicle. Police used capsicum spray on him to effect an arrest. He continued to resist arrest by pushing off police and rolling along the side of the vehicle, before eventually managing to get back into the vehicle again. He started the vehicle and attempted to put it into gear. He was eventually pulled out of the vehicle and onto the ground. After several minutes, he was handcuffed and arrested (Charge 5: resisting an emergency worker on duty).
The applicant was transported to Northern Hospital in a highly drug affected state and treated for lacerations on his head sustained during the arrest.
Following the arrest, police conducted a search of the applicant’s vehicle.
Various white crystalline substances were found in the car. They were transported to the Victorian Police Forensic Services Centre for analysis. As a result of the analysis, the following quantities were confirmed:
(a)Methylamphetamine with a net weight of 401.4 grams of 82–87% purity. (Charge 1: Trafficking in a drug of dependence in not less than a commercial quantity);
(b)MDMA with a net weight of 187.9 grams of 26–36% purity. (Charge 4: Trafficking in a drug of dependence); and
(c)Cocaine with a net weight of 89.3 grams of 50–75% purity (Charge 2: Trafficking in a drug of dependence).
Police also found the following items in the vehicle:
(a)$1,910 in Australian Currency (Summary Charge 8: Dealing with property suspected of being proceeds of crime).
(b)Four working Digital scales.
(c)Two blister packs containing 30 ‘Imovane 7.5g’ tablets. (Summary Charge 16: Possess Schedule 4 poison (zopiclone)).
(d)Six white rectangular shape tablets of Xanax. (Charge 3: Possess Drug of dependence (Alprazolam)).
(e)Louis Vuitton wallet stamped with ‘RP’ and containing multiple forms of ID belonging to Peter Kassiotes. (Charge 6: Handling stolen goods).
(f)One round of ammunition. (Summary Charge 15: Possess cartridge ammunition without licence).
(g)A Black glasses case containing a ‘Rolex’ leather band watch and a ‘Rolex’ brand silver and gold watch. (Summary Charge 8: Dealing with property suspected of being proceeds of crime).
A search warrant was executed on the applicant’s house in Roxburgh Park. The search found an American Express card in the name of L. Berbichashvill in the applicant’s wardrobe that had been stolen (Charge 6: handling stolen goods).
On 18 April 2020, the applicant was charged and remanded without interview.
On 20 April 2020, the Adult Parole Board cancelled the parole order pursuant to s 77 of the Corrections Act 1986. The Applicant was returned to custody to serve the unexpired portion of his original sentence.

Reasons for sentence

The judge called the offence of trafficking in not less than a commercial quantity of drugs ‘a very serious offence in any circumstance.’[2] In this case, the offence was committed whilst the applicant was on parole.[3]
[2]DPP v Polos [2021] VCC 1506, [15] (‘Reasons’).
[3]Ibid [16].
The judge said the weight and purity of the substance possessed is ‘the key determinant of the gravity of the offence’.[4] The judge found that the drugs that are the subject of charge 1, being 401.4 grams, at a purity around 85%, was almost seven times the designated 50 grams commercial quantity for pure methylamphetamine.[5] This was regarded by the judge as a middle range example of an inherently serious offence.[6]
[4]Ibid [21].
[5]Ibid.
[6]Ibid [24].
The judge found that the 187.9 grams of substance containing the MDMA, the subject of charge 4, was more than 60 times the applicable trafficable quantity and about 37% of the designated commercial quantity for MDMA.[7] The 89.3 grams of cocaine, the subject of charge 2, was significantly in excess of the 3 gram trafficable quantity and about 16% of the designated commercial quantity.[8] The judge regarded these offences as being serious examples of the offence of trafficking simpliciter.[9]
[7]Ibid [22].
[8]Ibid [23].
[9]Ibid [24].
The judge found that the motivation for the applicant’s actions was a financial gain of some kind but was unable to make a more definitive finding, either favourable or unfavourable to the applicant on this topic.[10]
[10]Ibid [19].
The judge considered the applicant’s moral culpability to be high, as he had chosen to participate in the trafficking of substantial amounts of multiple substances whilst still serving a previous sentence of the court, whilst being released on parole.[11]
[11]Ibid [25].
The judge called the manner of the applicant’s driving ‘manifestly dangerous’ and considered summary charge 25 a significant example of the offence.[12]
[12]Ibid [27].
The judge accepted that the applicant would ‘endure imprisonment as more onerous than others’ and that limb 5 of Verdins v The Queen[13] was enlivened.[14] Whilst no other limb of Verdins was applicable, the applicant’s diagnoses were considered by the judge as part of the applicant’s broader background, relevant to his prospects of rehabilitation.[15]
[13](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[14]Reasons, [38].
[15]Ibid [39].
The applicant’s co-operation with authorities involved the surrender of a substantial number of weapons, none of which had been connected by the investigating police to the commission of any crimes. The judge found there was a benefit to the community in those weapons being surrendered, and that the surrender was consistent with remorse and was relevant to the applicant’s prospects of rehabilitation.[16]
[16]Ibid [40]–[41].
The judge considered it appropriate that there be some reduction of the applicant’s sentence by reason of the surrender. The discount for that co-operation was ‘necessarily limited’ in that the applicant did not provide any further information to enable further investigations.[17] The judge noted that there was also no suggestion that in surrendering those weapons, the applicant had exposed himself to any risk of retribution, either in the prison environment or beyond.[18]
[17]Ibid [43].
[18]Ibid [44].
The judge considered the applicant’s plea of guilty to the charges on the indictment at the committal mention of the matter on 6 January 2021 to be a plea of guilty made at the earliest reasonable opportunity.[19] He accepted that the utilitarian value of that plea was particularly high at a time where pandemic restrictions had placed extreme pressure on court listings.[20] The impact of COVID-19 was also taken into account as a matter of mitigation.[21]
[19]Ibid [45].
[20]Ibid [46].
[21]Ibid [57].
The judge held that the applicant had ‘a level or remorse, albeit something short of complete contrition.’[22] He considered that the applicant’s prospects for rehabilitation were guarded, but that there was scope for them to improve.[23]
[22]Ibid [50].
[23]Ibid [55].
In a passage that forms the centrepiece of proposed grounds 1 and 2 the judge addressed the significance of the cancellation of the applicant’s parole:
It is highly probable that you will be required to serve in custody, that portion of your 2013 sentence for which you had previously been granted parole. Pursuant to s16(3B) of the Sentencing Act 1991, time owed for that sentence would be served effectively cumulatively upon the sentence imposed for these offences.
In circumstances where your parole was cancelled because of serious offending, none of the time spent by you whilst released on parole would count towards the sentence imposed in 2013, unless the Parole Board directed otherwise. The time owing on that sentence is potentially three years, although I do note you have completed a portion of this owed time in the period of time since being remanded in custody, after your arrest.
Some moderation of the current sentence is appropriate to have some pragmatic regard for the totality of time that you will be required to serve in custody.
Given your previous criminal history, specific deterrence retains some significance in the sentencing process. It is also necessary to deter others from similar offending. I must impose a sentence that is just in all the circumstances, expresses the denunciation for your conduct, and considers the protection of the community.
I must impose sentences on each individual charge that are appropriate for the circumstances applicable to them, then ensure that the structure of the sentence produces a total effective sentence that reflects totality of the criminality and the matters in mitigation.[24]
[24]Ibid [60]–[64]
The judge said he was conscious that the commission of these offences whilst on parole was ‘an aggravating feature of several of the charges’, but was also conscious to ‘not doubly punish [the applicant] for the offence of breaching parole conditions’.[25]
[25]Ibid [65].

Determination by the Parole Board

As a result of the applicant’s parole being cancelled he was returned to prison to serve out the balance of his 2013 sentence. It is not in dispute that the sentence imposed by the judge was required to be served cumulatively upon the 2013 sentence that the applicant was then serving. In other words, the total effective sentence of 3 years and 9 months commenced on the expiration of the 2013 sentence. That is because by reason of s 16(3B) of the Sentencing Act 1991, the judge not having ‘otherwise directed’, the applicant is required to serve both the total effective sentence of the prior offending (10 years) and the total effective sentence imposed by the judge (3 years and 9 months).
On 26 October 2021, that is, some weeks after the sentence was imposed, the Adult Parole Board determined pursuant to ss 77B(2)(b) and 78C of the Corrections Act that none of the period the applicant had spent on parole (7 September 2018 to 20 April 2020) would be regarded as time served in respect of the applicant’s earlier offending. The effect of that determination was that, in serving out the balance of the first sentence, he was taken not to have served the nine months that he spent on parole and was required to serve an equivalent amount in prison as part of the amount remaining to be served under that sentence.

Grounds of Appeal

Grounds 1 and 2

It is convenient to deal with grounds 1 and 2 together. They are in the following terms:
1.There has been a substantial miscarriage of justice such that a different and lesser sentence should now be imposed upon the Applicant by reason of the new (or fresh) evidence that the Adult Parole Board, on 26 October, 2021, determined that none of the period (between 7 November, 2018 and 20 April, 2020) that the Applicant had spent on parole would be regarded as time served in respect of the prison sentence.
2.The learned sentencing judge erred in applying the sentencing principle of totality by failing to take into account the entire period of 10 years’ imprisonment which the Applicant might be required to serve under the sentence imposed by Her Honour Judge Hampel on 24 April, 2013 in circumstances where:
(i)the Applicant had been released on parole on 7 November, 2018 under the said sentence imposed by Her Honour Judge Hampel;
(ii)the Applicant committed the offences for which he fell to be sentenced by the learned sentencing judge while on parole, thereby breaching his parole; and
(iii)the Adult Parole Board had cancelled the Applicant’s parole on 20 April, 2020, as a result of which the Applicant was returned to custody whereby he might be required by the Adult Parole Board to serve the balance of the said sentence imposed by Her Honour Judge Hampel, namely, 2 years, 11 months and 26 days.

Submissions

The applicant submits that under the sentencing principle of totality, the judge was required to take into account the total period of custody to be served for both the prior and most recent offending, and satisfy himself that the combined effect of those two sentences was not disproportionate to the aggregate criminality involved in both the prior and most recent offending.[26] The applicant submits that the judge only took into account the potential period of 2 years, 11 months and 26 days that would potentially be reclaimed by the Adult Parole Board rather than the total period of custody for the prior offending (10 years).
[26]DPP v Bowen (2021) 65 VR 385, 386–7 [2]–[8], 395–6 [41]–[44] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA); [2021] VSCA 355 (‘Bowen’).

The applicant further submits that the decision of the Adult Parole Board on 26 October 2021 is admissible as new ― but often called ‘fresh’ ― evidence on this application.[27] The applicant submits that it will be necessary for the Court to consider the effect of that new evidence and whether a sentence different from that imposed by the judge should now be imposed.[28]
[27]R v Alashkar (2007) 17 VR 65, 69 [12] (Vincent, Redlich and Kellam JJA); [2007] VSCA 182 (‘Alashkar’).
[28]R v Eliasen (1991) 53 A Crim R 391, 394, 396 (Crockett J).
As a result of the above, the applicant submits that the sentencing discretion is re-opened, which requires this Court to re-sentence him. The applicant submits that this Court should have regard to the entirety of both the prior and most recent offending, evaluate the totality of the criminality, determine the total sentence that should be imposed for all of those offences at the one time, then impose the sentence for the most recent criminality with appropriate moderation, citing Mill vThe Queen[29] and DPP v Rongonui.[30] In the course of his oral submissions, Senior Counsel for the applicant flirted with a submission that this Court was not entitled to look at the circumstances of the prior offending but ultimately accepted that, in order to assess the overall level of criminality involved, it was necessary to take into account those circumstances but without traversing any finding made by the first sentencing judge.
[29](1988) 166 CLR 59, 66–7 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70.
[30](2007) 17 VR 571, 575–6 [15]–[19] (Maxwell P); [2007] VSCA 274.
The respondent attempts to distinguish Alashkar on the basis that in this case the sentencing judge was in a position to take into account the cancellation of the applicant’s parole, and therefore rightly took into account the 2 years, 11 months and 26 days the applicant would potentially be required to spend in custody.[31]
[31]R v Piancentino (2007) 15 VR 501; [2007] VSCA 49.
The respondent submits that the decision by the Adult Parole Board on 26 October 2021 that none of the time spent on parole would be regarded as time served as part of the 2013 sentence is not new or fresh evidence, citing The Queen v Nguyen.[32] The respondent submits that this decision does not demonstrate the true significance of events that occurred after sentence nor does it throw significant new light on pre-existing facts.
[32][2006] VSCA 184, [36]–[37] (Redlich JA).
The respondent submits that although Bowen was decided after the applicant was sentenced, there has been no substantial miscarriage of justice. Further, even if a court resentencing the applicant were to apply Bowen, the consideration of totality may not necessarily have much impact upon this sentence, in light of the aggravating feature of the offending that it was committed whilst the applicant was on parole, and the requirement of the judge to have regard to s 16(3B) of the Sentencing Act. In oral submissions, counsel for the respondent submitted that Bowen clearly indicates that the circumstances of prior offending should be taken into account in consideration of totality, not just the sentence imposed for that prior offending.

Decision

It is convenient to commence with some matters of basal principle.
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.[33] The principle applies not just to an evaluation of the overall criminality involved in the charged offences for which the person is being sentenced but also takes into account sentences being served at the time of sentence.[34]
[33]Mill v The Queen (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70; Postglione v The Queen (1997) 189 CLR 295, 308 (McHugh J); [1997] HCA 26 (‘Postiglione’).
[34]Postiglione (1997) 189 CLR 295, 308 (McHugh J); [1997] HCA 26.
In Bowen, a five-member Court considered how the totality principle is to apply in circumstances where the person being sentenced was on parole at the time of the offending and, by reason of the offending has his or her parole cancelled and returns to prison. In short, the issue was whether the Court should take into account the total sentence served (including any additional amount relating to the cancellation of parole), or only consider the further period of time the prisoner must serve by reason of the cancellation of parole. This Court unanimously held that it was the former. The Court said that the sentencing court must ask itself whether the combined effect of the original sentence and the proposed breach sentence is (dis)proportionate to the total criminality involved in the two sets of offences.[35] The Court endorsed the following observation of Kaye AJA in Koumis v The Queen:
[T]he court must take into account that the cancellation of the offender’s parole means that the offender is required to complete the balance of a custodial sentence to which he or she is already subject, in addition to serving the sentence which is to be imposed on the offender. In doing so, the court must consider the criminality involved in the prior offending, and the period already served in custody in respect of it. Those circumstances are all logically relevant to determining whether, in a particular case, there may need to be some moderation of the sentence which is to be imposed, in order to ensure that, in all the circumstances, it is ‘just and appropriate’.[36]
[35]Bowen (2021) 65 VR 385, 396 [42] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA); [2021] VSCA 355.
[36](2013) 44 VR 193, 195 [9] (Kaye AJA); [2013] VSCA 47 (citations omitted).
In this case, the applicant was sentenced to a total effective term of imprisonment of 10 years in 2013. By reason of the cancellation of parole, and the subsequent determination of the Parole Board, he had to serve the entire sentence, and got no credit for the time he spent on parole. When the judge came to sentence the applicant for the present offences, he was required to assess the total amount of time the applicant would spend in custody under both the 2013 sentence and any sentence the judge would impose in the context of the total criminality involved in all of the offending. In this case, that meant the judge had to assess whether a combined sentence of 13 years and 9 months was proportionate to the overall criminality involved.
The applicant founds his submission on two bases. First, he says that the judge only took into account the nearly 3 years[37] which was the period of parole that was cancelled and which the applicant had to serve rather than the entire 10-year term of the first sentence. Second, he says that the subsequent decision of the Parole Board, which he seeks to prove by so-called fresh evidence, provides an additional burden as he would have to serve in custody a period corresponding to the time he had spent on parole and this could not have been taken into account by the judge because it had not occurred at the time of sentence.
[37]It was 2 years, 11 months and 26 days.
The second aspect can be addressed immediately, As the reasons for sentence disclose, the judge proceeded on the basis that it was ‘highly probable’ that the applicant would be required to serve in custody that portion of his 2013 sentence for which he had previously been granted parole.[38] In other words, the judge had already factored in the prospective exercise of power on the basis that it would be exercised adversely to the applicant. This is not a case where subsequent facts show that the sentence was imposed on a false basis. It follows that the judge proceeded on a basis that accurately predicted what was to occur. The application to adduce fresh evidence must be refused because the relevant facts were already taken into account by the judge. The proposed evidence does not demonstrate the true significance of events that occurred after sentence nor does it cast any new light on pre-existing facts that were not properly understood at the time.[39]
[38]Reasons, [60].
[39]R v Duy Duc Nguyen [2006] VSCA 184, [36]–[37] (Redlich JA, with whom Maxwell P and Neave JA agreed).
That leaves the first limb of the argument.
The applicant points to the observation of the judge that since his parole had been cancelled the time owing on that sentence was ‘potentially three years’ at the time of the sentence, to submit that the judge only had regard to the three-year parole period and not to the total sentence of 10 years.[40]
[40]Reasons, [61].
We reject the submission. The judge said, ‘Some moderation of the current sentence is appropriate to have some pragmatic regard for the totality of time that the applicant will be required to serve in custody.’[41] In our opinion, when read fairly the judge took into account the fact that any sentence he imposed was in a context where he was still serving a 10-year sentence and that any sentence the judge imposed would be cumulative upon that sentence.
[41]Ibid [62].
Further, given the seriousness of the present offending and that it occurred while on parole for extremely serious offending which was also associated with the applicant’s drug use, it is plain that the sentence that was imposed was heavily moderated by questions of totality. We are not persuaded that the judge did not take into account, as part of the process of considering totality, that any sentence would be cumulative upon the existing 10-year sentence.
Grounds 1 and 2 must be rejected.

Grounds 3 and 4

It is also convenient to deal with grounds 3 and 4 together which are as follows:
3.The learned sentencing judge erred in his assessment of the gravity of the offence the subject of Charge 1 on the indictment by having regard to the fact that the weight of the methylamphetamine, being 401.4 grams, at a purity around 85%, is almost 7 times the designated 50 grams commercial quantity of pure methylamphetamine, and having no regard to the fact that the said weight was approximately 1.6 times the designated 250 grams commercial quantity of a mixture of methylamphetamine and a substance(s).
4.The learned sentencing judge erred in his assessment of the gravity of the offence the subject of Charge 1 on the indictment by regarding it ‘as a middle range example of an inherently serious offence’.

Submissions

Given the drug of dependence the subject of charge 1, methylamphetamine, was in a mixture, the applicant submits that the judge should have had regard only to the threshold for commercial quantity of a mixture of methylamphetamine (250 grams), and not had any regard to the threshold for pure methylamphetamine (50 grams). Had the judge done so, gravity would have been assessed at approximately 1.6 times the commercial quantity, rather than the ‘almost seven times’ commercial quantity for pure methylamphetamine found by the judge.[42]
[42]Ibid [21].
The applicant also submits that the judge should not have categorised the offence that is the subject of charge 1 ‘as a middle range example of an inherently serious offence’.[43] The applicant cites a number of cases in this Court as supporting the proposition that a sentencing judge should not categorise cases as falling within a particular ‘range’.[44] In oral submissions, counsel for the applicant submitted that this amounts to two-stage sentencing and obscures the essential nature of sentencing discretion as an exercise of instinctive synthesis. Further and in the alternative, the applicant submits that the judge miscategorised the offending as a ‘middle range example’.
[43]Ibid [24].
[44]DPP v Weybury (2018) 84 MVR 153; [2018] VSCA 120, [33]–[34] (Maxwell P and Hargrave JA), [54] (Priest JA); Walsh v The Queen [2018] VSCA 334, [28]–[29] (Priest and Weinberg JJA); Lee v The Queen [2018] VSCA 343, [31]–[32] (Ferguson CJ, Priest and Beach JJA).
Noting that the quantity involved reaches both the mixture and pure thresholds for commercial quantity of methylamphetamine, the respondent submits that the relevant level of criminality is not altered by reference to either threshold, and the fact the applicant meets both thresholds demonstrates the objective gravity of the offence. In oral submissions, counsel for the respondent submitted that where both thresholds are reached, both are routinely referred to. The respondent submits that by referring to the pure threshold, the sentencing judge was emphasising the high purity of the methylamphetamine.
The respondent acknowledges that it is best to avoid categorising whether a case falls within a particular range, but submits that the reference to the middle of a range is not an error that vitiates the sentencing discretion. The respondent submits that in light of the seriousness of the offending and aggravating factors, the sentence of 3 years and 3 months’ imprisonment on charge 1 was not consistent with the judge’s description of the offence as a ‘middle range example’; rather, the sentence imposed was merciful. In oral submissions, counsel for the respondent submitted that the principle of totality had significant work to do in leading to this sentence being imposed for charge 1.

Decision

Charge 1 alleged that the applicant trafficked a drug of dependence in an amount not less than the commercial quantity for that drug. The commercial quantity of methylamphetamine is defined in two ways:
(a)first, where the drug is in its pure form, an amount of 50 grams;
(b)second, where the drug is present in a mixture the commercial quantity is 250 grams of the mixture.
Apart from its relevance to the question whether the minimum threshold amount of drugs that constitutes a commercial quantity[45] for the purposes of a trafficking offence is satisfied, the quantity of the drug will also be highly relevant to the gravity of the offending in a particular case. Self-evidently, and all other things being equal, trafficking 200 grams of pure methylamphetamine is more serious than trafficking 100 grams of the drug even though they both constitute an example of the same offence, namely trafficking in a commercial quantity of the drug.
[45]Or ‘large commercial quantity’, which for methylamphetamine is 750 grams.
In assessing the gravity of the offending in particular case it is not uncommon for a court to express the quantity of drugs in question as a multiple of the qualifying amount. Thus, in the example just given, a court may refer to 200 grams as being four times the qualifying commercial quantity or 100 grams as twice the commercial quantity. As a means of articulating the scale of the offending such a measure it is useful enough. However, no one would suggest that the ratio ought to be reflected in the sentence imposed as if it were some mathematical formula.
There is no doubt that the quantity of methylamphetamine found in the applicant’s car satisfied the threshold for trafficking in a commercial amount. Indeed, by his plea of guilty the applicant accepted this to be so.
Given that the amount of pure drug contained within the mixture was known, there was no error in the judge assessing the gravity of the offending by considering the proportion of the mixture that consisted of methylamphetamine and then comparing that amount to the qualifying commercial amount of the pure drug.
The applicant’s submission that the judge was only permitted to assess the applicant as having 1.6 times the commercial quality measured as a mixture and was obliged to ignore the ratio to the pure drug cannot be accepted. The proportion of a mixture that constitutes the relevant drug, when it is known, will inevitably be a relevant factor in assessing the gravity of the offending. Describing that amount as a multiple of the qualifying amount for the pure drug is not uncommon and may serve a legitimate purpose in the assessment of the gravity of the offending.
The judge did not misunderstand the gravity of the offence and his reference to the applicant trafficking a multiple of the commercial quality of the pure drug did not lead him into error.
Ground 4 can be disposed of briefly. As this Court has said on multiple occasions trying to compartmentalise offending into categories with ever increasing levels of granularity is unhelpful because it tends to give the impression that each case can be fitted into neat boxes. Such descriptions are also inevitably conclusionary and provide no substitute for an articulation of the facts that the judge considers aggravates or mitigates sentence. Describing how an example of an offence fits within the ‘spectrum’ of cases of the kind is not always easy and the use of descripts such as ‘mid-range’ does not in itself indicate error.
In this case, the judge addressed himself carefully to all of the relevant matters. His assessment of the gravity of the offending was open to him. It might be observed that even though the judge described charge 1 as ‘a middle range example of an inherently serious offence’ when regard is had to the sentence imposed, the circumstances in which it was committed and the prescribed maximum penalty, one is driven to describe the sentence on charge 1 as lenient. It certainly does not bespeak any overly harsh assessment of the gravity of the offence.
Grounds 3 and 4 must be rejected.

Ground 5

Ground 5 is as follows:
5.The learned sentencing judge erred in determining that the discount in sentence to be given to the Applicant by reason of the Applicant’s co-operation with the authorities was ‘necessarily limited’, thereby erring in the exercise of his discretion by failing to give sufficient weight to this significant factor in mitigation of sentence.

Submissions

In support of ground 5 the applicant relied on two letters provided by Detective Acting Superintendent Peter Tatter that described the applicant’s involvement in arranging for the surrender of a substantial number of weapons to police. The applicant submits that when regard is had to the substantial quantity of the weapons surrendered, their nature, the potential harm which would be caused by their use and the obvious effect of those weapons no longer being available for use by any offenders, the judge erred in assessing the magnitude of the discount for his cooperation as being ‘necessarily limited’.
In oral submissions, counsel for the applicant submitted that the judge erred by assessing the magnitude of the discount for cooperation by reference to what more could have been done, thereby giving insufficient weight to the value and benefit of the cooperation that the applicant provided.
The respondent submits that the judge gave appropriate weight to the applicant’s surrender of weapons. The respondent notes that the applicant was not a covert human source; did not provide information regarding an investigation or information that would assist charges to be laid; and did not provide information regarding the ownership of the weapons, the background to the weapons or how the applicant was aware of their existence and location. The weapons were not linked to any unsolved crimes and the information provided by the applicant was rated as low quality and the risk to the applicant assessed as low.

Decision

Cooperation with authorities by an offender can be a very powerful matter in mitigation of sentence.[46] It might evidence remorse and may facilitate the administration of justice in the investigation and prosecution of criminal activity. Cooperation may also come at great cost to the individual. There may be the risk of serious reprisals and it may render the conditions of incarceration more onerous as prison authorities attempt to protect the person from adverse consequences that cooperation may cause.
[46]See, e.g., R v Johnston (2008) 186 A Crim R 345; [2008] VSCA 133.

A sentencing judge will need to assess the level and value of the cooperation, the extent to which the administration of justice has been served and the risks that may be associated with the cooperation. There is no formula to be applied. There is no standard ‘discount’ that must be applied.
There is no doubt the judge took into account the applicant’s cooperation and it moderated the sentence that the judge would otherwise have imposed. It is not possible to quantify the extent to which the sentence was moderated for this reason. The applicant says that the reasons reveal an error in principle because the judge said the ‘discount for cooperation is necessarily limited’ because he had not provided other information. The applicant says the true issue is not what else the applicant could have provided but the value of what was provided. He says the removal of firearms from the criminal milieu was of great societal value.
In our view, the judge recognised that the effect of the applicant’s cooperation was that functioning weapons were taken from circulation. The judge noted that this was of ‘obvious utility’.[47] The judge’s observation that the cooperation was ‘necessarily limited’, was simply an observation that the cooperation would not lead to any investigation or prosecution. That was an accurate statement of fact. That fact was not irrelevant to the judge’s proper assessment of the level and value of the assistance.
[47]Reasons, [41].
The weight to be attributed to the applicant’s cooperation was a matter for the primary judge. We are unable to detect in either the reasons for sentence or in the sentence imposed any error of principle that suggests that the judge’s treatment of cooperation miscarried.
This ground must be rejected.

Ground 6

By his final proposed ground, the applicant says:
6.The sentence imposed by the learned sentencing judge is, in all the circumstances of the case, manifestly excessive.
The applicant submits that in light of the mitigating factors accepted by the judge, the sentence imposed, being wholly cumulative on the 2 years, 11 months and 26 days which the applicant was required to serve in prison by reason of cancellation of his parole, was not reasonably open, being wholly outside the range.
The respondent notes that maximum penalty and current sentencing practice, which has been recalibrated for commercial quantity trafficking,[48] are among the many factors to be taken into account in the sentencing synthesis and the need for individualised sentencing.[49] The respondent raises Vincent v The Queen,[50] Roxburgh v The Queen[51] and Lytras as cases that are of assistance in assessing current sentencing practice. In reply oral submissions, counsel for the applicant submitted that the applicant’s circumstances are different to any of these cases.
[48]See Gregory (pseudonym) v The Queen (2017) 268 A Crim R 1; [2017] VSCA 151, [100] (Maxwell P, Redlich and Beach JJA); Fernando v The Queen (2017) 268 A Crim R 26; [2017] VSCA 208, [62] (Redlich JA).
[49]Lytras v The Queen [2020] VSCA 150, [56]–[58] (Priest and Weinberg JJA) (‘Lytras’); DPP v Condo [2019] VSCA 181, [20] (Maxwell P , T Forrest and Weinberg JJA).
[50][2021] VSCA 99.
[51][2021] VSCA 181.
The respondent submits that the judge gave appropriate weight to mitigating factors and the sentencing purposes of general deterrence, denunciation and specific deterrence were relevant, and accordingly the sentence imposed was within sound discretionary judgment.

Decision

We have no hesitation in rejecting this ground.
First, the applicant was sentenced to an effective sentence of three years and six months’ imprisonment for the three drug trafficking offences. Given the amount involved particularly in relation to charge 1 which was concerned with a mixture of 400 grams of methylamphetamine of a reasonably high degree of purity, general deterrence was a significant factor in any sentence.
Secondly, the offending as a whole was brazen. His dangerous driving and attempts to avoid capture demonstrated a complete disregard for the law and an attitude that was impervious to the potential effect on other members of the community.
Thirdly, the applicant was on parole. He had served around seven years’ imprisonment and within a short space of time was engaged in very serious criminality while on parole. Although he was not to be punished again for his earlier offending, the sentence needed to address, in stark terms, the need for specific deterrence.
Fourthly, although it is necessary to have regard to totality taking into account the combination of the existing sentence he was serving and any additional sentence to be imposed, the overall level of criminality was high. The armed robberies were very grave and resulted in a very long term of imprisonment on the applicant who was then a very young man. The recent offending was separated in time and of a different kind, although drug abuse appears to be a common factor, but involved distinct criminality that needed to be punished.
It is plain that the mitigating factors that the applicant could call in aid: his plea of guilty, cooperation and totality were all given due weight by the judge as is reflected in the sentence he imposed.
In the result, the sentence was well within the range open to the judge in the sound exercising of his discretion.

Conclusion

We would reject each of the proposed grounds of appeal. In the circumstances, there is no utility in granting an extension of time.
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[2022] VSCA 258

24 November 2022