R v Volkov

Case [2022] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

R v Volkov [2022] QCA 57

PARTIES:

R
v
VOLKOV, Vadim Victor
(applicant)

FILE NO/S:

CA No 178 of 2021
SC No 684 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 June 2021 (Martin J)

DELIVERED ON:

22 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2021

JUDGES:

Fraser and McMurdo JJA and Williams J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking dangerous drugs – where the applicant was sentenced to nine years imprisonment with no recommendation as to parole – where the applicant was aged between 32 and 33 years old at the time of the offending – where the applicant seeks leave to appeal against his sentence on the basis that it is manifestly excessive – where the applicant’s counsel at first instance conceded that the sentence actually imposed was appropriate – whether the sentencing judge erred in adopting a starting point that the trafficking would have attracted a head sentence over ten years – whether the applicant is bound by counsel’s concession at first instance – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant’s counsel made a concession at the sentencing hearing that the sentence which was imposed was an appropriate one – where sentencing submissions of this kind do not have the effect of displacing or qualifying the applicable law – where they neither expand nor confine the judge’s discretionary power – where the respondent submits that the concession made by the applicant’s counsel should matter in the exercise of this Court’s discretion – whether the concession by the applicant’s counsel before the sentencing judge has a bearing upon whether the sentence should be held to have been manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 15, s 15(1A)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46, cited
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
R v Civcija[2018] QCA 83, cited
R v Flew[2008] QCA 290, cited
R v Frame[2009] QCA 9, cited
R v Lowien[2020] QCA 186, cited

COUNSEL:

S C Holt QC for the applicant
S L Dennis for the respondent

SOLICITORS:

Macquarie Legal for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with Williams J’s conclusion that the sentence is not manifestly excessive.  I agree also with McMurdo JA’s reasons.  The application for leave to appeal should be refused accordingly.

  2. McMURDO JA:  I have read the…

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Details
AGLC
R v Volkov [2022] QCA 57
Case
[2022] QCA 57
Decision Date

CaseChat Overview and Summary

The applicant, Volkov, was convicted of trafficking dangerous drugs and sentenced to nine years imprisonment with no recommendation as to parole. Volkov appealed against his sentence on the basis that it was manifestly excessive. The court considered whether the sentencing judge erred in adopting a starting point that the trafficking would have attracted a head sentence over ten years, and whether Volkov was bound by counsel's concession at first instance that the sentence actually imposed was appropriate.

The court held that the concession made by Volkov’s counsel at the sentencing hearing did not have the effect of displacing or qualifying the applicable law, nor did it expand or confine the judge’s discretionary power. While the concession might have some bearing on the exercise of the court’s discretion, it did not prevent the court from considering whether the sentence was manifestly excessive. The court also found that the sentencing judge did not err in adopting a starting point that the circumstances of Volkov’s drug trafficking would have attracted a head sentence of over ten years. The court concluded that the sentence imposed was not manifestly excessive.

The court refused Volkov’s application for leave to appeal against his sentence. The sentence was considered appropriate in all the circumstances of the case.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

There are two discrete issues arising from the applicant’s submissions that need to be considered:(a)First, the effect of Counsel for the applicant’s concession at first instance that the sentence actually imposed was appropriate.(b)Second, whether the sentencing judge erred in adopting the starting point that the circumstances of the applicant’s drug trafficking would have attracted a head sentence of over 10 years had it proceeded to trial, resulting in the sentence imposed being manifestly excessive.Background facts The sentence proceeded on the basis of an agreed statement of facts.[13] The agreed facts included:[13]Exhibit 2 ARB 31-36.(a)The applicant’s trafficking business came to light as a result of a Crime and Corruption Commission investigation into an alleged drug distribution operation within the Gold Coast area.(b)A principal target of the investigation was Paul Vella, who sourced commercial quantities of drugs from New South Wales and used multiple couriers to transport them to distribution points on the Gold Coast.(c)The investigation identified a number of people being customers or distributors for drugs sourced by Paul Vella and Steven Phillips. The applicant was identified through a mobile phone number as frequently communicating with these individuals.(d)The applicant was also observed by surveillance attending an automotive workshop on numerous occasions, which was used for commercial production and distribution of methylamphetamine.(e)A further investigation from 18 February 2015 focused on the applicant’s alleged drug distribution. This included lawfully intercepted telephone conversations, and further obtained covert video, audio and tracking devices in the applicant’s car.(f)Between 5 August 2014 and 5 August 2015, the defendant carried on business of supplying cocaine, methylamphetamine and steroids.(g)The exact number of customers and frequencies of actual supplies is difficult to ascertain as a result of the variety of techniques used to conceal his activities. This included coded conversations and Blackberry mobile phones.(h)The applicant supplied drugs in high retail amounts up to wholesale amounts ranging in quantities valued in the hundreds of dollars up to, on one occasion, three ounces. There is also evidence of supplies in the amounts of an eight ball (3.5g) on one occasion and an ounce (28g) of cocaine on another.(i)The applicant had a central customer base. He regularly discussed meeting, often in public places such as car parks, restaurants or shopping centres. But it is not possible to identify how many actually involved drug supplies.(j)The applicant supplied drugs either himself directly to his customers, or via a courier (who simultaneously operated his own drug business).(k)Drugs were supplied on credit to customers. Further, multiple storage sheds and cash deposit boxes were utilised and the applicant frequented these throughout the trafficking period.(l)The applicant and others used code, including references to “catch up”, “eat”, “feed”, “Sushi”, “coffee” and “cars” which were subsequently confirmed to be code for drugs or drug-related meetings.(m)The applicant received a package from Hong Kong containing Blackberry mobile phones which the applicant subsequently distributed to his contacts including Stephen Phillips.(n)The applicant met with customers over short periods of time. The meetings often lasted only seconds and did not involve, for example, any food. Surveillance at times identified a small package changing hands.(o)On 3 August 2015, an auto-electrician located one of the covert surveillance devices which had been placed inside the applicant’s car. The police operation was closed as a result.(p)On 4 and 5 August 2015, police arrested the applicant and executed a series of search warrants at his houses, storage sheds and safety deposit boxes.(q)During these searches, police located a small quantity of drugs, prescription drugs, chemicals, weapons and a large quantity of cash totalling $382,900.00.(r)The cash was used as working capital in the applicant’s drug business, as well as his other illicit business activities such as off-the-book money lending.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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