R v Rekhviashvili
[2010] VSCA 3
•29 January 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 575 of 2009
| THE QUEEN |
| v |
| REYN REKHVIASHVILI |
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| JUDGES | NEAVE and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 January 2010 |
| DATE OF JUDGMENT | 29 January 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 3 1st Revision, 1 February 2010 |
| JUDGMENT APPEALED FROM | R v Rekhviashvili (Unreported, County Court of Victoria, Judge Gullaci, 27 March 2009) |
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CRIMINAL LAW – Sentence – Appeal – Appellant pleaded guilty to trafficking and possessing drugs of dependence and to possessing a prohibited firearm – Whether definition of ‘mixture’ includes mixed substances containing drugs found in separate containers – Appropriate weight given to low levels of purity of substances – Cumulation of sentences not excessive – Total effective sentence and non-parole period not manifestly excessive – Appeal dismissed.
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Appearances: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr C Boyce | Grigor Lawyers |
NEAVE JA
BONGIORNO JA:
On 20 March 2009 the appellant, Reyn Rekhviashvili, pleaded guilty to one count of being a prohibited person in possession of an unregistered firearm, two counts of trafficking in a drug of dependence and two counts of possessing a drug of dependence. After hearing a plea in mitigation of sentence, the learned trial judge sentenced the appellant on 27 March 2009 as follows:
Count
Offence
Term/fine
Cumulation
1
Possessing an unregistered firearm[1]
18 months’ imprisonment
Base sentence
2
Trafficking in a drug of dependence (methylamphetamine)[2]
15 months’ imprisonment
9 months
3
Trafficking in a drug of dependence (amphetamine)[3]
15 months’ imprisonment
2 months
4
Possessing a drug of dependence (diacetylmorphine)[4]
$1,000
5
Possessing a drug of dependence (cocaine)[5]
$1,000
[1]Firearms Act 1996, s 5(1A).
[2]Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’), s 71AC.
[3]Ibid.
[4]Ibid s 73(1).
[5]Ibid.
The orders for cumulation made by his Honour resulted in a total effective sentence of 2 years and 5 months’ imprisonment. His Honour fixed a non-parole period of 18 months’ imprisonment.
The appellant now appeals against that sentence.
Circumstances of the offending
On 7 June 2007 police located a stolen car in the car park of an apartment block in Prahran. The car, which belonged to a car rental company, had been hired with the appellant’s credit card and had not been returned. Police interviewed the manager of the apartment block and were informed that the appellant was in possession of the car and had just entered one of the apartments. After entering the apartment, they discovered the appellant in a bedroom with another male. The appellant and his companion were seated on a bed and had next to them two rolled up bundles of cash amounting to $3,515.25. Underneath a pillow on the bed was a travel bag, out of which a handgun was protruding. The appellant admitted to police that the bag belonged to him.
The gun, a .25 millimetre automatic pistol, was not registered in Victoria. It was loaded with four full metal jacket cartridges, one of which was in the chamber. It had recently been fired. The appellant did not have a firearms licence and being a person who had been sentenced to 21 months’ imprisonment for drug offences in the previous five years, was a prohibited person pursuant to s 3 of the Firearms Act 1996.
The bag also contained five mobile phones and a sunglasses case. Inside the case were five small plastic bags containing white powder and six foil packages containing a crystalline substance. Both the learned judge and the Crown (in its opening) relied upon an analysis of the substances performed by Nicola Dear, a scientist employed at the police’s Forensic Services Department, (‘Certificate of Analyst’).
In the Certificate of Analyst, Ms Dear certified that on 28 June 2007 she examined various items. Items 2 and 6 were plastic bags containing white crystalline powder, item 3 was a plastic bag containing white powder, items 4 to 7 were plastic bags ‘containing a substance in the form of white crystalline powder’, item 8 comprised two foil packets each containing a substance in the form of white powder, item 9 comprised two foil packets each containing a substance in the form of green crystalline powder and item 11 was a foil packet containing a substance in the form of compressed white powder.[6]
[6]Various other items containing powder and tablets are not set out here as they were not relevant to the counts to which the appellant pleaded guilty.
Items 4, 7 and 10 each contained diacetylmorphine (heroin). Item 11 contained 0.3 grams of cocaine. The appellant did not appeal against the fines imposed for his possession of those substances.
Items 5, 6, 8 (combined) and item 9 (combined) each contained methylamphetamine, the total quantity and percentage purity of each item being as follows:
Item Number Quantity of Substance
(Grams)Approximate purity (%) of methylamphetamine 5 3.5 4 6 3.5 Not determined 8 (combined) 0.1 8 9 (combined) 0.3 50 Total 7.4
Items 6 and 8 (combined) each contained amphetamine, with the total quantity and percentage purity of the drug in each item being as follows:
Item Number Quantity of Substance
(Grams)Approximate purity (%) of methylamphetamine 6 3.5 Not determined 8 (combined) 0.1 40 Total 3.6
It is apparent from the Certificate of Analyst that the heading of the second table should read amphetamine and not methylamphetamine.
Circumstances of the offender
The appellant was born in southern Russia in 1975 and was 32 years old at the time of committing the offences and 34 at the date of sentencing. The appellant’s father was killed in a car accident when the appellant was 13 and his mother remarried a year later. In 1989 when the appellant was 15, he migrated to Australia with his mother and stepfather, with the assistance of a Jewish welfare agency. He attended high school for five months in 1991 and at the age of 16, began working in community markets selling clothes with his parents.
The appellant entered into an arranged marriage in 1993 when he was 18 or 19 years old. In 1993 he was charged with possession and use of cannabis. He separated from his wife in 2000 and began going to night clubs and using drugs. Soon after he was imprisoned for drug offences. He was released in 2004, returning to live with his parents. The appellant then formed a relationship with a woman who was a heroin user and recommenced his use and trafficking of drugs.
After being charged with the offences to which this sentence relates, his solicitors referred him to Mr Lamberti, a rehabilitation consultant, and he attended about 18 drug rehabilitation sessions. During that period his urine screens showed that he was drug free, but he ceased to see Mr Lamberti after February 2008 and later relapsed into drug use.
When he was released on bail he became an in-patient at the Raymond Hader Clinic for a month and continued to receive treatment for his drug addiction as an outpatient for a further three months. Prior to the plea hearing he was seen and assessed by Mr Jeffrey Cummins, a forensic psychologist. Both Mr Lamberti and Mr Cummins gave evidence at his plea hearing.
He admitted ten prior convictions arising from four court appearances.[7] The majority of those convictions were for drug offences, with two counts of trafficking in a drug of dependence and six counts of possession. The appellant had previously been imprisoned for drug and other offences on two occasions; in 2003 the County Court imposed a total effective sentence of 3 years’ imprisonment and in 2004 it imposed a total effective sentence of 21 months’ imprisonment.
[7]The learned sentencing judge referred to 12 prior convictions: R v Rekhviashvili (Unreported, County Court of Victoria, Judge Gullaci, 27 March 2009) (‘Reasons’), [30]. It appears however that two of those were not convictions, but counts for which he appeared before the Magistrates’ Court in 1994 but was not ultimately convicted due to the adjournment of proceedings for a period of 12 months.
Sentencing remarks
In his sentencing remarks his Honour referred to the quantities of drugs in the possession of the appellant as follows:
In addition to the firearm, when police searched your bag they located five mobile phones and a sunglass case containing five small plastic bags of white powder, and six more foils containing a crystalline substance. Upon analysis it was determined the substance consisted of the following drugs: 3.8 grams of methylamphetamine; 3.6 grams of amphetamine; 1.1 gram of heroin, and .3 gram of cocaine. The Crown alleged, and you have pleaded guilty to, trafficking in methylamphetamine and amphetamine, and you also pleaded guilty to the two counts of, as I set out above, possession of heroin and cocaine. You were subsequently interviewed by police and made a ‘No comment’ interview.[8]
[8]Reasons, [5].
His Honour took account of the evidence of Mr Lamberti and Mr Cummins. He summarised Mr Cummins’ evidence as follows:
Mr Cummins, in his report and also in his evidence before the court, concluded inter alia (i), that you have a long history of drug abuse; (ii), that in respect to the current charges you had relapsed to a drug using lifestyle whereby your daily activities revolved around drug usage and drug trafficking, (iii), that you had undergone drug screening which was negative; (iv), that you have reported to be drug free since leaving the Raymond Hader Clinic; (v), that you now accept that you have a drug addiction; (vi), that you suffer from a chronic dysthymic disorder, however Mr Cummins did not conclude that your dysthymic disorder had caused a contributor [sic] to your current offending (vii), that you have unresolved psychological and psychiatric issues and that you would benefit from specific psychological/psychiatric treatment and (viii), that your prospects for long-term rehabilitation would be increased if you receive ongoing treatment.[9]
[9]Ibid [11].
His Honour referred to defence counsel’s submission that the appellant was ‘a low level user and dealer’.[10] He noted that ‘the amounts of drugs involved in the trafficking were small and the offending was limited to a single day’.
[10]Ibid [7].
His Honour took account of a number of factors in the appellant’s favour. These included the appellant’s guilty plea, which entitled him to a sentencing discount, the fact that he had completed a residential program and was apparently drug free, that he had family support and that he had unresolved psychological issues and now accepted the need to receive treatment. His Honour referred to the character references provided on behalf of the appellant and the fact that he had consented to a forfeiture order. His Honour considered that the appellant had some prospects of rehabilitation if he remained drug free.
In relation to count 1, his Honour did not accept that the appellant was looking after the gun for a friend, as he had claimed. For reasons which are not challenged, he was satisfied beyond reasonable doubt that the gun was in the appellant’s possession as part of his involvement as a drug trafficker.[11]
[11]Ibid [28].
His Honour said that if the appellant had not pleaded guilty to the offences, he would have been sentenced to a head term of 40 months and a minimum term of 30 months.
Grounds of appeal
Ground 1
This ground of appeal alleges that:
… the learned sentencing judge erred by sentencing the applicant on Counts 2 & 3 on the basis that the substances referable to each count contained 3.8 grams of methylamphetamine, and 3.6 grams of amphetamine respectively.
This ground of appeal had two aspects.
First, the outline of submissions filed on behalf of the appellant contended that because the substances were found in separate packages (for count 2, a plastic bag and two foil packets and for count 3, a plastic bag and two foils) the Crown could not rely on the amounts in the individual item numbers to support the trafficking offences in counts 2 and 3 respectively. Counsel contended that the totality of the substances containing the relevant drug were not to be regarded as a mixture of a drug of dependence and another substance exceeding a traffickable quantity, under Part 3 of Schedule 11 of the Drugs Act.
Counsel for the appellant abandoned this aspect of ground 1 at the hearing. It was clearly appropriate for him to do so. Because the appellant pleaded guilty to trafficking in methylamphetamine and amphetamine, it was unnecessary for the Crown to rely on the prima facie presumption in s 73(2) of the Drugs Act, under which a person who is in possession of a traffickable quantity of a drug (three grams in the case of each of the drugs covered by counts 2 and 3) is presumed to be trafficking in that drug.[12]
[12]Cf R v Stamenkovic [2009] VSCA 185.
Further, although it is unnecessary to decide the question for the purposes of this case, we do not consider that the fact that the drugs were contained in separate plastic bags and foils would preclude the application of Part 3.
In our view the word ‘mixture’ in Part 3 of Schedule 11 is apt to describe the situation where a mixed substance containing the drug is found in a number of separate bags or other containers (as was the case here).[13] If this were not the case the provisions dealing with a mixed substance could be avoided by the simple expedient of dividing the substance containing a drug of dependence into separate packages, the weight of each of which is less than a traffickable quantity. Such an approach could also exclude application of the mixture provision where the drug possessed by the offender is in several forms, for example in a liquid, as crystals and in tablets.
[13]In R v Ahmed (2007) 17 VR 454 (‘Ahmed’) it was not contended that the fact that the drugs were contained in various forms, including powder, tablets and liquids prevented their treatment as a ‘mixture’.
This case is not on all fours with Ahmed[14] where this Court allowed the appeal against conviction of an accused who had pleaded guilty to separate counts of trafficking in different drugs. In that case the weight of the mixture containing the different drugs of dependence was relied upon by the Crown to show that the accused exceeded a commercial quantity or a large commercial quantity of each of the relevant drugs contained in the mixture.[15] In those circumstances it was held that he had been doubly punished. Because count 2 relates to items 5 and 9, and count 3 relates to items 6 and 8, there is no double punishment in this case.[16]
[14](2007) 17 VR 454.
[15]See particularly ibid 462 (Nettle JA).
[16]Count 3 related to items 4, 7 and 10, and count 4 related to item 11.
The second aspect of ground 1, which was not abandoned by counsel, relates to his Honour’s reference to the amounts of the methylamphetamine and amphetamine found in the appellant’s possession. Counsel for the appellant submitted that the judge should not have sentenced the appellant on the basis that he was in possession of 3.8 grams of methylamphetamine and 3.6 grams of amphetamine. It was contended that this amounted to a sentencing error because the appellant was in fact in possession of mixed substances containing differing percentages of the relevant drugs, as set out above. Counsel submitted that in referring to those amounts, his Honour had overstated the extent of the appellant’s culpability. The very low level of purity of the drugs was a relevant sentencing factor because it showed that the appellant was not a major drug dealer but was trafficking at the bottom end of the scale.
Counsel for the Crown submitted that, although it may have been infelicitous for his Honour to refer to the amounts of 3.8 grams of methylamphetamine and 3.6 grams of amphetamine when the substances in the bags contained drugs of varying degrees of purity, it was not an error for him to do so.
In our opinion this aspect of ground 1 is not made out. The discussion between counsel and the sentencing judge at the plea hearing makes it clear that his Honour was well aware of the low levels of purity of the drugs in possession of the appellant.
We do not consider that his Honour’s description of the offences was inaccurate because it did not specify the level of purity of the methylamphetamine or amphetamine found in the appellant’s possession. Sentencing judges do not invariably describe the quantity of drugs which are found in the possession of offenders by reference to their level of purity. Further, even if this amounted to a factual error, it was not material. His Honour’s reference to the small amount of drugs in which the appellant trafficked and the sentences imposed on counts 2 and 3 make it clear that the appellant was sentenced on the basis that he was a poly-drug user and a low-level drug dealer.
For these reasons, ground 1 is not made out.
Ground2
Ground 2 alleged that the judge erred by ordering excessive cumulation as between Counts 1 and 2.
Counsel for the appellant submitted that the cumulation of 9 months of the 15 month sentence on count 2, which amounted to more than 50 per cent of that individual sentence, was excessive. A smaller amount of cumulation was justified because the trafficking offence in count 2 occurred at the same time as the offence of possession of an unregistered firearm.
Counsel conceded that the sentence of 18 months’ imprisonment imposed on count 1 was moderate, as was the cumulation of 2 months of the 15 month sentence imposed on count 3. However he submitted that Director of Public Prosecutions v Grabovac[17] required the sentencing judge to pass appropriate individual sentences and then make orders for concurrency or cumulation which produced an appropriate total effective sentence.[18]
[17][1998] 1 VR 664, 680 (Ormiston JA).
[18]See also R v Lomax [1998] 1 VR 551, 564 (Ormiston JA).
Accordingly, he submitted that this Court should not take the view that the order for cumulation of the sentence imposed on count 2 was justified, simply because it would have been open to the sentencing judge to impose a longer term of imprisonment on count 1, or because the Court might not consider the total effective sentence to be manifestly excessive.
Counsel for the Crown submitted that the possession of a loaded firearm was a serious offence which involved an act of criminality distinct from the trafficking offence covered by count 2. The order for 9 months’ cumulation of the sentence imposed on count 2 was well within the discretion of the sentencing judge.
In our opinion ground 2 is not made out. Although the prima facie presumption contained in s 16 (1) of the Sentencing Act 1991 applied in sentencing the appellant, ‘all that … entails is that there must be good reason to direct or order cumulation’.[19] The judge has a broad discretion in determining the extent of cumulation which should be ordered. There is no hard and fast rule preventing an order for significant cumulation being made, simply because the offences arose out of a single episode. As Callaway JA said in R v Mantini:
There is almost always a range of sentencing dispositions and an appellate court does not interfere, in the absence of specific error, unless the disposition chosen by the judge is clearly inappropriate or the sentence is manifestly excessive.[20]
[19]R v Mantini [1998] 3 VR 340, 348 (Callaway JA).
[20]Ibid 349.
We are not persuaded that it was a sentencing error for his Honour to order cumulation of 9 months of the 15 month sentence imposed on count 2. This is not a case in which the sentencing judge imposed a very short sentence on one count and then made an excessive order for cumulation on the other.[21] Although the appellant was found in possession of the loaded gun at the same time as he was found in possession of the drugs to which count 2 related, the nature of the criminality involved in counts 1 and 2 was quite different. His Honour found that the possession of the gun related to the appellant’s drug dealing, but drug dealing does not inevitably involve the possession of firearms. For the reasons set out below we also consider that the order for cumulation did not produce a manifestly excessive total effective sentence.
Ground 3
[21]Cf R v Izzard (2003) 7 VR 480, 485 (Callaway JA).
Under this ground the appellant claimed that the individual sentences imposed on counts 1, 2 and 3, the total effective sentence and the non-parole period were manifestly excessive. At the hearing counsel for the appellant did not contend that the individual sentences were manifestly excessive, but submitted that the order for cumulation had produced a total effective sentence which was manifestly excessive.
We would also reject this ground. The maximum sentence for the offence covered by count 1 was 15 years’ imprisonment. As his Honour noted, the weapon was an automatic pistol and was loaded. His Honour correctly regarded the offence as serious. In these circumstances both general and specific deterrence had to be given some weight. In our view the sentence imposed on this offence was a moderate one, particularly when viewed in the light of the appellant’s prior offending.
The maximum sentence for the offences covered by counts 2 and 3 is 15 years’ imprisonment. The individual sentences of 15 months’ imprisonment imposed on each count were not inappropriate, having regard to the relatively small quantities of drugs involved, the appellant’s drug addiction and his attempts to overcome that addiction. The appellant was a mature man who had previously served terms of imprisonment for drug offences and his Honour took a qualified view of his prospects of rehabilitation.
So far as the ground of manifest excess is concerned, his Honour took account of all relevant mitigating factors and other sentencing considerations. In our opinion the sentence imposed was well within the exercise of a reasonable sentencing discretion.
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