Rosenlis v The Queen

[2012] VSCA 217

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0308
CHAD ALEXANDER ROSENLIS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and OSBORN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	13 June 2012
DATE OF JUDGMENT/ORDER:	13 June 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 217
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria at Melbourne, Judge Punshon, Date of Sentence 18 November 2011

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CRIMINAL LAW – Sentence – Trafficking in a commercial quantity of a drug of dependence – Evidence of rehabilitation – Sentence of 40 months’ imprisonment with a minimum term of 21 months’ imprisonment not manifestly excessive – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Ascot Solicitors Pty Ltd (Deer Park)
For the Crown	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions (Ms D Ziukelis)

BUCHANAN JA:

1. The appellant was arraigned in the County Court and pleaded guilty to an indictment containing one charge of trafficking in a commercial quantity of methylamphetamine and one charge of trafficking in cocaine. 

1. A plea was conducted and the appellant was sentenced to be imprisoned for a term of three years and four months on the charge of trafficking in methylamphetamine and for a term of four months on the charge of trafficking in cocaine.

1. Two months of the sentence on the charge of trafficking in cocaine were cumulated on the charge of trafficking in methylamphetamine creating a total effective sentence of three years and six months’ imprisonment.  A minimum term of 21 months’ imprisonment was fixed before the appellant was to be eligible for parole. 

1. A single judge of this Court granted the appellant leave to appeal against sentence on the following grounds: 

1.The sentence was manifestly excessive as to Charge 1 and as to the total effective sentence and in any event, as to the non‑parole period.

2.The learned sentencing judge erred in giving too much weight to general deterrence in the unusual circumstances of this case.

1. On 10 December 2009, the appellant and two co‑offenders were arrested at a car wash in Bulleen.  They were in a car belonging to one of the offenders.  A snap lock bag contained 450.2 grams of methylamphetamine was found in the appellant’s underpants.  The drugs were to have been delivered to an undercover police operative, who had arranged for the purchase of the drug from the appellant and his co‑offenders. 

1. Police later searched the family home of the appellant and found a football bag in which there were six snap lock bags containing 996.7 grams of methylamphetamine and $71,700 in cash. 

1. It was agreed between the Crown and the defence that the methylamphetamine in the football bag had been delivered to the appellant’s house by another person and that the appellant was holding it for that person. 

1. When he was interviewed by the police, the appellant told them that he had been selling methylamphetamine for about one year and that he sold it in small quantities to various people.  He told the police that between $10,000 and $40,000 of the money found in the bag was the proceeds of drug trafficking.

1. The appellant also told the police that he had sold small quantities of cocaine to friends but said that he had sold cocaine for a shorter period than he had sold methylamphetamine.

1. The total amount of methylamphetamine found in the appellant’s possession on 10 December 2009 was 1,446.9 grams of a purity of 25 per cent.  Although one kilogram of methylamphetamine is a large commercial quantity of the drug, if mixed with another substance, it appears to have been accepted that the appellant’s mens rea did not extend to the relevant foresight for a more extreme charge than trafficking in a commercial quantity of the drug.

1. The appellant is 24 years’ old.  He was only 21 years’ old at the time of the offending.  His parents separated when he was about 11 years’ old but he has remained close to both his parents.

1. The appellant left school after completing year 12.  He gained a diploma in Business Management at Monash University and a business degree at La Trobe University.  When he was sentenced he was working with his father in the office of a recycling business.

1. In the course of the plea, a report by a psychologist was tendered.  The psychologist said: 

In my opinion at the time of offending, he was immature and suffering from a chronic adjustment disorder which compromised his perception and judgment.  In my opinion his participation in treatment and his associated maturation in conjunction with treatment and his work as confirmed he does not have an antisocial personality style, an antisocial personality disorder or any personality disorder.  In my opinion, his prospects for long‑term rehabilitation are very favourable.

1. The psychologist’s opinion as to the prospects of the appellant’s rehabilitation was borne out by other evidence.  An impressive body of character evidence was called on the appellant’s behalf. 

1. Since his arrest, the appellant has returned to his studies and football.  He became a mentor and was at pains to alert others to the risks associated with drugs and dissuade them from repeating his mistakes. 

1. This Court viewed videotaped recordings of addresses by the appellant to groups of youths recounting his experience and urging his listeners against following his example.  It appeared to me at least that the appellant was confident, articulate and intelligent.

1. The sentencing judge accepted that the appellant was remorseful and ashamed of his offending.  The appellant’s work with the community organisation ‘Kids Off The Kerb’, had enabled him to gain insight into social disadvantage and the harm that drugs can produce.  His enthusiasm for this work was, according to the sentencing judge, ‘much to his credit’.  The plea and the appellant’s youth were also powerful mitigating factors.

1. Against this body of impressive evidence, there remained the gravity of the offending and the importance of general deterrence in sentencing for these crimes.  The appellant’s motive appears to have been a mixture of ambition, greed and enhancement of his self esteem.  He trafficked in a substantial quantity of drugs over a significant period of time.  The maximum sentence for trafficking in a commercial quantity of methylamphetamine is 25 years’ imprisonment.  Generally crimes of commercial trafficking in a drug of dependence are punished by imposition of substantial terms of imprisonment.

1. I do not think that it has been demonstrated that the sentencing judge erred in the exercise of his discretion.  He was conscious of each of the factors now relied

upon by the appellant and in my opinion none of them, considered individually or in combination, compelled the conclusion that a lesser sentence was required.  The significant nature of the appellant’s rehabilitation appears to have been accorded due weight.  The non‑parole period, in my view, does reflect the appellant’s prospects of rehabilitation. 

1. It was conceded by counsel for the appellant at the plea that a term of imprisonment would be imposed but it was submitted that it should be wholly suspended.  In my opinion, that was not a submission his Honour was bound to accept.  The persistence of the trafficking over a period of a year by an intelligent man motivated by the desire for money, in my view meant that allowing for the many and weighty mitigating circumstances the appellant could invoke, a sentencing judge could reasonably form the view that a term of imprisonment should be imposed that was to be immediately served. 

1. The gravity of the offending required the sentencing considerations of general deterrence, just punishment and protection of the community to be given due weight and in my view reduced the weight to be given to the appellant’s youth and his efforts to atone for his wrongdoing. 

1. I would dismiss the appeal.

OSBORN JA:

1. I agree.

1. I would also dismiss the appeal for the reasons which have been stated by the learned presiding judge.

BUCHANAN JA:

1. The order of the Court is that the appeal is dismissed.

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