Power v the Queen
[2010] VSCA 139
•10 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0539
| MICHAEL GAVIN POWER | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and HARPER JJA and HANSEN AJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 10 June 2010 | ||
DATE OF JUDGMENT: | 10 June 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 139 | ||
JUDGMENT APPEALED FROM: | R v Power (Unreported, County Court of Victoria, Judge Duggan, 26 February 2008) | ||
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CRIMINAL LAW – Sentencing – Whether manifestly excessive – Trafficking in commercial quantity of ecstasy – Other drug and weapons offences – Nature of appellant’s role in offending – Sentence of 3 years and 9 months’ imprisonment on trafficking count and total effective sentence of 4 years 3 months’ imprisonment within range – Mitigating factors – Non-parole period reduced from 3 years to 2 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr O P Holdenson QC | Stephen Andrianakis & Associates |
| For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
1 I invite Hansen AJA to deliver the first judgment.
HANSEN AJA:
This is an appeal against sentence by Michael Gavin Power who, following a plea in the County Court on 26 February 2009, was sentenced to imprisonment as follows:
(a) On Count 1, of possessing a general category unregistered hand gun – eight months.
(b) On Count 2, of trafficking in a drug of dependence, namely MDMA, in not less than a commercial quantity – 45 months.
(c) On Count 3, of possession of a drug of dependence, namely methylamphetamine – three months, and
(d) On Count 4, of possession of a drug of dependence, cannabis – one month.
In addition, on a summary offence of possessing a prohibited weapon, namely a samurai sword, he was sentenced to one month's imprisonment. With a direction that five months of the sentence imposed on Count 1 be served cumulatively upon the sentence imposed upon Count 2, a total effective sentence of four years and two months' imprisonment was ordered with a minimum term of three years' imprisonment before the appellant was eligible for parole.
The appellant contends that in all the circumstances of the case, the sentence imposed on Count 2 is manifestly excessive with the consequence that the total effective sentence was manifestly excessive. It is also contended that the non-parole period is manifestly excessive. Hence there is no issue as to the sentences imposed on Counts 1, 3 and 4 and the summary charge.
Each offence occurred on the same day, 10 April 2007. On that day at approximately 5 am, police executed a search warrant at the premises where the appellant lived and when he was then asleep. The police were looking for two others, not the appellant.
The above counts arise out of what the police found at the premises. As to them, the hand gun the subject of Count 1 was fully loaded with six .38 calibre rounds and various drugs were found on the premises which were duly examined and tested. The most significant was the quantity of the drug, MDMA, the subject of Count 2, which was made up of 2917 ecstasy tablets weighing a total of 719.8 g, analysis of which disclosed that they were 30 per cent pure MDMA. It is to be noted that the commercial quantity of a substance containing ecstasy is 500 grams and the trafficable quantity of such a substance is 3 grams. The quantity of methylamphetamine the subject of Count 3 was powder that weighed 4.7 grams and was ten per cent pure methylamphetamine. The subject of Count 4 was 8 grams of cannabis.
The appellant was arrested and interviewed. He admitted living at the premises where he was found but otherwise responded 'no comment'.
The appellant was born on 11 December 1974 and was thus aged 32 years at the time of the offences and 34 years at the time of sentence. He had no prior convictions. As noted by the judge in his sentencing remarks, the appellant was a slow developer who did not do well at school, was diagnosed with ADHD in 1985 and left school at the Year 9 level aged 15. At about that age he commenced a drug habit which had dictated of the course of his life since. Soon after leaving school he left the family home in Canberra and went to a youth refuge where he was assaulted and returned home for six months but then left again.
At age 17 he resumed his education and completed Year 11 but gave up Year 12 halfway through. In 1995 the appellant came to Melbourne and kept in work despite his drug addiction. In December 2002, his partner of two years died of an asthma attack which was not drug-related and which led to a worsening of the appellant's drug-taking. His most recent employment had been at General Motors in a customer service role for a contractor.
The judge noted that the appellant had commenced drug and alcohol counselling on 23 May 2008 and appeared to have done what he could since then. This appeared to have been first serious attempt to cease his drug habit, according to the judge. As the judge noted the attempt was not made until he found himself 'very much of the drug culture' and which the judge accepted had led to the offending.
The judge further noted that the appellant was supported by his family and friends and that a number of personal references had been put forward on the plea. Those references have been provided to the Court this morning and I have read them. They are, as the judge indicated, an impressive level of support.
It is to be noted that the appellant gave evidence on the plea. He admitted that the methylamphetamine and cannabis were his, but deposed that the MDMA had been left at his premises by an acquaintance four or five days earlier and were not his. Accordingly he was in possession of the MDMA, but in that sense only. The appellant also deposed that this person had left the hand gun at the same time. It is to be noted that this person was one of those the police were looking for. The judge did not accept these explanations. The judge stated that:
That does not enable me to come to any other conclusion, only that I do not accept what you have claimed. That leaves me with no more than the knowledge that you were discovered in possession of ecstasy tablets that had a substantial market value.
Possession of drugs, in that quantity is prima facie evidence of trafficking and, of course, you have pleaded guilty to a charge of trafficking and having done so, in a commercial quantity, which this was.
It follows that you must be sentenced on the basis that you were found in possession of a very considerable quantity of illegal drugs, with a substantial market value. Thus, you were a participant in the illegal commercial movement of these drugs from producer to user.
One does not have to be in this Court for very long to appreciate the extent to which drug addiction is damaging to addicts, their families, the victims of crimes that are committed to support the expensive habit and to the wider society in general.
Here, you were discovered with a very substantial quantity of ecstasy tablets, in circumstances establishing that you were involved, to some extent, in the illegal trade of drug trafficking.
Beyond what I have said it is impossible to know the nature and extent of that involvement. I do not believe your disclaimer.
The judge noted the mitigating factors of the plea of guilty, lack of prior convictions and the minimal role the appellant played in the offences, particularly the drug trafficking. He considered that the appellant had realistic prospects for rehabilitation, but on the other hand, it was necessary 'to send the message to others' who participate in the drug trade that if caught they must expect significant punishment. The appellant knew he was involved in this trade and what the outcome would be if the involvement was discovered, the judge said. Furthermore the possession of the loaded hand gun was a serious offence that required a term of imprisonment, and was particularly sinister when found together with drugs.
Counsel for the appellant accepted, as he had to, the findings of the judge as to the appellant's involvement in the drug trade, and that the appellant was sentenced on the basis of those findings. Counsel noted, however, that the judge could not, and did not, impose sentence on the basis that the appellant owned the drugs; intended to sell the drugs or assist in doing so; that the appellant had engaged in any act directed toward the delivery or sale of the drugs or would do so; that he would share in any profit or income from the sale of the drugs; that he had ever sold any drugs; or was participating in a continuous trade or business of trafficking in ecstasy tablets or would do so.
Counsel submitted that in these circumstances and having regard to the mitigating factors accepted by the judge, the sentence on Count 2 was outside or beyond the range of sentences that might properly and reasonably be imposed and thus was manifestly excessive.
Counsel relied in support on Director of Public Prosecution v. Collins[1] where it was held that a sentencing judge had not erred in imposing a low penalty on the basis that any trafficking in the relatively small quantity of drugs there involved had been 'nipped in the bud' before causing any damage.
[1](2004) 10 VR 1, 13 [29].
In my view, the analogy with Collins is not entirely well taken. What one has here is not a small amount but a commercial quantity, and the facts found by the judge considered in relation to the quantity do not indicate that the matter was 'nipped in the bud'. The various matters identified by counsel as matters that the judge could not sentence on the basis of are to be understood in light of the findings of the judge that the appellant was a participant in the illegal commercial movement of the drug and that he knew or was involved in some way in the drug trade.
I agree with the judge in his observation that those who commit offences as here and in particular that the subject of Count 2 must expect significant punishment. Considerations of general deterrence, denunciation and protection of the public are significant considerations in a case such as this. Nevertheless, counsel for the appellant submitted that the sentence imposed on Count 2 exceeded that which was warranted in the circumstances and in particular having regard to the judge's findings. Furthermore, he submitted, the sentence was disconformably greater than that imposed for other and seemingly more serious offences of trafficking in a commercial quantity. I have regard to all that counsel said as to that, but the ascertainment of the appropriate sentence in a case must very much be conditioned on the particular facts and circumstances.
Furthermore, as the Crown pointed out, the principal measure of seriousness of the offence is the quantity of drugs trafficked; see R v Pidoto and O'Day.[2] Here the commercial quantity was well exceeded. While the judge did not find what the specific nature of the trafficking was the Crown, in a written submission provided prior to the hearing today, submitted that it could only be one of the matters mentioned in paragraph (c) of s 70(1) of the definition of trafficking in the Drugs, Poisons and Controlled Substances Act 1981 and that the facts in this case supported trafficking by 'have in possession for sale'. That inference, it was said in the written submission, was not displaced by the matters relied on by the appellant's counsel, for on this basis the relevant consideration was 'possession', rather than ownership of the drugs. Thus it had been submitted, the appellant fell to be sentenced as a person who had in his possession a quantity of drugs for sale. Of course they were for sale, but the judge did not find that the sale would be by the appellant. Hence the difficulty in acting on that submission is that it goes further than the judge found. Furthermore, in his submissions today counsel for the Crown did not go to that argument at all.
[2](2006) 14 VR 269, 278 [41].
Finally, the Crown submitted that the appellant's role was at the lower end of seriousness for this type of offence. It was further said that the sentence is at the lower end of the range and so also was the gravity of the offence. Nevertheless, it was submitted by the Crown that the sentence was within the range that was open to the judge to impose.
The maximum penalty for the offence is 25 years' imprisonment and, as the judge rightly stated, this was a serious example of the offence. In my view, and regarding the matter overall, the sentence of 45 months was in the range of that which was open to the judge to impose. It follows as a matter of consequence that the appeal in relation to the total effective sentence must fail. But a separate question was raised as to the length of the non-parole period of three years fixed by the judge. As to that, counsel for the Crown took a position which was in my view commendable in referring to the various mitigating factors identified by the judge and to the relative criminality and role of the appellant in relation to possession of the drugs and the count of trafficking, as to which it was said that his position was unfortunate in being found with them. It was emphasised that the principal interest of the police in effecting the raid when they did was the other two persons, not the appellant.
I think that there is merit in this consideration and am particularly affected by the mitigatory factors particularly the prospects of rehabilitation. Regarding the matter overall, I am of the view that it would be appropriate in the circumstances of the case to reduce the non-parole period and I would reduce the present period and fix a total period in lieu of two years; that is to say, a reduction of one year.
NETTLE JA:
Harper JA to deliver the next judgment.
HARPER JA:
I agree with the judgment of my learned colleague, Hansen AJA, for the reasons which he gives.
NETTLE JA:
I also agree but would add that, despite the Crown's concession that the sentence of three years and nine months imposed on the count of trafficking in a commercial quantity of a drug of dependence was ‘sternish’, given the low level of the objective seriousness of the offending and low level of the offender's moral gravity, I am not sure that I would so regard it (given that the maximum penalty for the offence is 25 years). It appears to me that, notwithstanding the low level of objective seriousness and moral culpability, the sentence of three years and nine months was well within the range.
I am conscious of the submissions put by counsel for the appellant as to the similarities between this case and the decision in DPP v Collins[3] but I consider there is little assistance to be derived by attempting to compare this case with that, because the facts are disparate.
[3](2004) 10 VR 1.
As for the non-parole period, there is force in the submission put by counsel for the appellant that, given the prospects of rehabilitation as found, and the evidence before the sentencing judge and before this Court that the appellant has been drug-free for some years, a non-parole period of close to 75 per cent of the head sentence was remarkable to the point of warranting appellate attention. In the circumstances, I consider that we are entitled to take the view that the judge did not give to the question of the non-parole period the attention which it warranted and thus, to that extent, the sentencing discretion is reopened in the way that Hansen AJA has outlined.
The orders of the Court will therefore be as follows:
1. The appeal is allowed in part.
2. The sentence passed below is varied by substituting for the non-parole period of three years set by the sentencing judge, a non-parole period of two years.
3. It is declared that the number of days already served under the sentence imposed is 488 days not including this day and it is directed that the fact of the declaration and its details be entered in the records of the Court.
I shall simply say for present purposes that all of the ancillary orders made by his Honour below pursuant to s 464ZFB of the Crimes Act1958, s 78.1 of the Confiscation Act 1997, s 151 of the Firearms Act1996 are confirmed.
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