Roxburgh v The Queen
[2021] VSCA 181
•24 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0071
| EVAN JOHN ROXBURGH | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, T FORREST and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 May 2021 |
| DATE OF JUDGMENT: | 24 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 181 |
| JUDGMENT APPEALED FROM: | [2020] VCC 265 (Judge Hassan) |
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CRIMINAL LAW – Appeal – Sentence – Drug trafficking – Trafficking by possession for sale – Trafficking in commercial quantity – 1.5 times CQ threshold – Sentence 4 years and 6 months – Traffickable quantity of second drug – Sentence 1 year – Total effective sentence 4 years and 9 months, non-parole period 3 years and 6 months – Whether manifestly excessive – Prior convictions for trafficking – Offences committed while on bail and on a community correction order – Need for specific and general deterrence – Guarded prospects of rehabilitation – Sentence within range – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G J Barns SC | Michael Gleeson & Associates |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
T FORREST JA
SIFRIS JA:
On 17 March 2020, the appellant pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity (methylamphetamine) and one charge of trafficking in a drug of dependence (1,4-Butanediol). He was also dealt with for a number of related summary offences. He was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in commercial quantity of drug of dependence (methylamphetamine)[1] 25 years 4 years and 6 months Base 2 Trafficking in drug of dependence (1,4-Butanediol)[2] 15 years 1 year 3 months Related summary offence 5 Dealing with property suspected of being proceeds of crime[3] 2 years 1 month — 7 Committing indictable offence while on bail[4] 3 months Convicted and discharged — 8 Contravening conduct conditions of bail[5] 3 months 1 month — Total effective sentence: 4 years and 9 months’ imprisonment Non-parole period: 3 years and 6 months Pre-sentence detention declared: 383 days Section 6AAA statement: 7 years with a non-parole period of 5 years Ancillary orders: Forfeiture and disposal order [1]Pursuant to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[2]Pursuant to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Pursuant to s 195 of the Crimes Act 1958.
[4]Pursuant to s 30B of the Bail Act 1977.
[5]Pursuant to s 30A(1) of the Bail Act 1977.
The appellant was granted leave to appeal against sentence on the following grounds:
Ground 1:The learned sentencing judge erred in finding that the principles outlined in Gregory (a pseudonym) v The Queen in respect of cases of trafficking in a commercial quantity approaching the large commercial quantity threshold had application in this matter.[6]
Ground 2:The individual sentences imposed, total effective sentence and non-parole period were, in all of the circumstances of this case, manifestly excessive.
[6]Citations omitted.
For reasons that follow, we would dismiss the appeal.
Circumstances surrounding the commission of the offences
In late October 2018, police were alerted to the fact that the appellant was trafficking methylamphetamine. They subsequently commenced an investigation into his activities. During surveillance conducted on the appellant’s home, police observed a number of vehicles, and persons, coming and going from that address. Those attending the address would only do so for short periods of time. This was said to be indicative of drug trafficking.
In the early evening of 19 February 2019, police executed a search warrant at the appellant’s home. As police entered the house through the front door, other officers were entering the backyard through a side gate. Those officers observed the appellant, carrying a dark satchel, running from the garage towards the back fence. The officers called out to him to stop and lie on the ground. He continued to run towards the fence, and threw the satchel towards the garage. An officer caught up to the appellant, restraining and arresting him.
Inside the satchel, police found four ziplock bags containing methylamphetamine, and two smaller plastic bags and a small plastic container also containing that substance. The combined weight of methylamphetamine was 76.204 grams pure. Police also found a plastic container of about 92.7 grams of 1,4‑Butanediol, $1,020 in cash, and various items of drug paraphernalia, including a ‘tick sheet’.[7] A further $1,040 cash was found on the appellant’s person and in his car.
[7]A written record of drug sales.
At the time of this offending, the appellant was on bail. He had failed to meet the reporting conditions of his bail order on 12 occasions between 14 November 2018 and the date of his arrest. He was also on a community correction order (‘CCO’).
Sentencing remarks
The judge acknowledged that, because trafficking in a commercial quantity of a drug of dependence (‘CQ trafficking’) was a ‘category 2 offence’, she was required by s 5(2H) of the Sentencing Act 1991 to impose a sentence of imprisonment, other than a term of imprisonment combined with a CCO.[8]
[8]That is, a term of imprisonment of 12 months or less, combined with a CCO. See Sentencing Act 1991 ss 5(2H), 44(1).
The judge then noted that the appellant had a number of previous convictions for drug possession and trafficking. Relevantly, he had a 2013 conviction for trafficking amphetamine and a 2015 conviction for trafficking MDMA, both of which had attracted terms of imprisonment.[9] At the time of the offending, he had completed about 13 months of an 18-month CCO for theft of a motor vehicle, and for committing an indictable offence whilst on bail.
[9]DPP v Roxburgh [2020] VCC 265, [3]–[4] (‘Reasons’).
Her Honour observed that the appellant had pleaded guilty at an early stage. She stated that the plea had ‘utilitarian value’, and was ‘indicative of remorse’.[10] The judge further noted that the appellant’s parents had written a letter of support, in which they indicated their ongoing support for their son, and their willingness to pay for a residential rehabilitation program into which he had been accepted.[11] The judge noted that this placement would be open to the appellant upon his eventual release from custody.
[10]Ibid [15].
[11]Ibid [16].
The judge recorded that the appellant had had a ‘normal and unremarkable’ upbringing.[12] He had begun using drugs at age 13, and to drink heavily and abuse alcohol at about age 16. He left school at the end of Year 10. He completed an apprenticeship as a fitter and turner, then worked in a number of jobs including at a scaffolding company, and as a car detailer. By the age of 20, he was using amphetamine. By 2009, when the appellant was 24, his ‘drug use prevailed over everything else in [his] life’.[13]
[12]Ibid [18].
[13]Ibid [21].
The judge noted that, while he was awaiting sentence, the appellant had learnt that he had become a father. He had also witnessed his sister’s rehabilitation from drug addiction. The judge accepted that both of those circumstances would motivate the appellant to try to rehabilitate.[14] She also observed that the appellant had used his time on remand productively, having completed a number of certificates.
[14]Ibid [22]-[23].
Her Honour then turned to the objective gravity of the offending. It hardly needed to be stated, her Honour said, that trafficking in a commercial quantity of a drug of dependence was serious offending. She went on:
Drug trafficking is a scourge on society. It destroys the health and well-being of its victims and it results in the ruination of lives, most often young lives.[15]
[15]Ibid [27].
The judge then referred to what was said by this Court in Gregory (a pseudonym) v The Queen (‘Gregory’),[16] which she summarised as follows:
In serious examples of the offence [of CQ trafficking], the Court stated that there was an expectation that there would be sentences ‘well into double figures’. The features set out by the Court that would warrant a sentence ‘well into double figures’ were that the quantity involved approached the large commercial quantity threshold, that the offender was in the trafficking business, the business was conducted for a substantial period of time, the offender pleaded not guilty, or the offender had relevant prior convictions.[17]
[16][2017] VSCA 151.
[17]Reasons [28] (citations omitted).
Counsel for the appellant on the plea had submitted that his client’s offending was at ‘the lower end of seriousness’ for CQ trafficking.[18] While not conceding that characterisation, the prosecution had accepted that the offending was not sophisticated and that — the charge being based on the appellant’s possession of the drug on the day of his arrest — there was little that could be established as to the duration or extent of his trafficking.
[18]Ibid [29].
Noting those concessions, her Honour said:
What is established is that the amount of methylamphetamine you trafficked was approximately one and a half times the commercial quantity threshold. The sentencing regime for trafficking offences is quantity-based. The quantity trafficked is therefore a highly relevant consideration in sentencing for trafficking offences. Put simply, other things being equal, the greater the quantity trafficked, the more serious the offence.[19]
[19]Ibid [30].
The judge accepted that the appellant’s offending was at the ‘lower end of seriousness’.[20] She found, however, that it had been aggravated by the fact that he had been on bail at the time, and also subject to a CCO. She said:
I must take into account the effects of your crime and I must have regard to current sentencing practices and to maximum penalties. The primary sentencing considerations in this case, as in all cases of drug trafficking, are general deterrence and denunciation. Drug offences are prevalent. The message must be sent out to others who would behave as you did that the courts will not tolerate drug trafficking and such activities will result in terms of imprisonment. Specific deterrence is also a relevant sentencing principle, given your criminal history.[21]
[20]Ibid [32].
[21]Ibid [34].
She accepted a submission put on the appellant’s behalf — which she described as ‘candid and appropriate’ — that his prospects of rehabilitation were no better than ‘guarded’, but said that she was encouraged by the availability of support and an offer of employment upon his eventual release.[22]
Ground 1: applicability of Gregory
[22]Ibid [35].
As noted earlier, this ground of appeal contends that the judge ‘erred in finding that the principles outlined in Gregory … had application in this matter’. A review of the sentencing reasons reveals, however, that her Honour made no such finding. The only reference to Gregory was in the passage set out above, where her Honour accurately summarised what was said in that case about the need for higher sentences for serious examples of CQ trafficking, involving one or more of the features there set out.
As senior counsel for the appellant properly conceded in this Court, nothing in the sentencing reasons suggested that her Honour viewed the appellant’s case as falling into that category of the offence or as having any of those features. On the contrary, as already noted, her Honour accepted that the appellant’s trafficking was ‘at the lower end of seriousness’ for CQ trafficking. Her Honour had noted that the quantity trafficked was 1.5 times the CQ threshold.
The ground of specific error must therefore be rejected. As senior counsel conceded in the course of argument, the complaint that what was said in Gregory had somehow impermissibly influenced the sentencing decision was really a complaint about weight. That complaint, of course, could only be considered under the ground of manifest excess, to which we now turn.
Ground 2: manifest excess
As her Honour noted, and as counsel for the appellant properly conceded on the plea, CQ trafficking is serious offending. The maximum penalty of 25 years’ imprisonment underlines just how seriously offending of this kind is viewed by the community and how sternly the legislature intended it should be punished.
While the appellant’s offence was at the low end of the quantity scale for CQ trafficking, it was clearly over the threshold which the legislature has set for a ‘commercial quantity’. As senior counsel for the appellant properly conceded in argument, with his past history of trafficking offences the appellant should be taken to be have been well aware that these offences are quantity-based, and that trafficking in a quantity well over the CQ threshold would be treated very seriously.
In our view, for the reasons which the judge gave, considerations of specific and general deterrence were of great importance in this sentencing exercise. This was the appellant’s third conviction for drug trafficking since 2013, and his most serious to date. The deterrent effect of the terms of imprisonment he has previously served has obviously not been sufficient to turn him away from this pernicious trade. Protection of the community from the harm caused by the appellant’s activities was therefore a very significant sentencing consideration.
Moreover, as the respondent correctly submitted, the appellant’s multiple convictions for drug possession and use, in addition to trafficking, represent a consistent history of breaching drug laws, involving a remarkable number of different drugs. Further, the offending was aggravated by the fact that the appellant was on bail at the time and was subject to a CCO. Unfortunately for the appellant, and for his supportive family, he seems quite unwilling to recognise that continued failure to comply with the law and with court orders will result in increasingly heavy sentences.
Given the maximum of 25 years’ imprisonment, and the fact that the appellant is a recidivist drug trafficker, we regard the sentence of 4 years and 6 months’ imprisonment on the CQ trafficking charge as moderate in the circumstances. The suggestion that the statements in Gregory had some unstated influence on her Honour’s decision is wholly without foundation.
The oral submissions concentrated on the non-parole period — representing 74 per cent of the head sentence — and on the unprecedented opportunity for rehabilitation which, it was said, entry into private drug rehabilitation would offer the appellant. Given what we have said about the need for specific deterrence, and the proper concession about the appellant’s ‘guarded’ prospects of rehabilitation, a non-parole period of 74 per cent is unremarkable.
The submissions about the new opportunity for rehabilitation had also to be viewed with considerable scepticism, in our view. As already noted, the appellant was on a CCO at the time of this offending. One of the conditions of that CCO was that he undergo ‘assessment and treatment (including testing) at a residential facility for withdrawal from or rehabilitation from drug abuse or dependency’. Fifty hours ‘undertaken for treatment and rehabilitation’ was to be deducted from the 200 hours of community work which the appellant was required to perform under the order. The fact that the appellant breached that CCO by committing this offence of CQ trafficking speaks for itself.
The manifest excess ground must therefore be rejected, and the appeal dismissed.
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