Sengul v The King

[2023] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0073

BARISH SENGUL	Applicant
v
THE KING	Respondent

---

JUDGES:	T FORREST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2023
DATE OF JUDGMENT:	30 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 63
JUDGMENT APPEALED FROM:	DPP v Barish Sengul [2022] VCC 696 (Judge Gamble)

---

CRIMINAL LAW – Appeal – Sentence – Possession of a drug of dependence – Trafficking in a drug of dependence – Handling stolen goods – Whether sentencing judge erred in failing to moderate sentence on account of time spent in residential rehabilitation – Whether sentence manifestly excessive – Leave to appeal refused under both grounds.

Clarkson v The Queen (2011) 32 VR 361, Romero v The Queen (2011) 32 VR 486, Akoka v The Queen [2017] VSCA 214, Mourkakos v The Queen [2018] VSCA 26 and Osman v The Queen [2021] VSCA 176 referred to.

---

Counsel
Applicant:		Mr M D Stanton
Respondent:		Mr C B Boyce KC
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
TAYLOR JA:

1. The applicant pleaded guilty in the County Court to one charge of trafficking in a drug of dependence, two charges of possession of a drug of dependence and one charge of handling stolen goods.

2. On 17 May 2022 the application was sentenced as follows:[1]

   [1]DPP v Sengul [2022] VCC 696 (‘Reasons’).

Charge	Offence	Max Penalty	Sentence	Commencement/ Cumulation
1	Possession of a drug of dependence (methylamphetamine)	1 year imprisonment or 30 penalty units or both	1 month imprisonment	-
2	Trafficking in a drug of dependence (1,4 butanediol)	15 years’ imprisonment	3 years’ imprisonment	Base
3	Possession of a drug of dependence (MDMA)	1 year imprisonment or 30 penalty units or both	1 month imprisonment	-
4	Handling stolen goods	15 years’ imprisonment	3 months’ imprisonment	-
Total Effective Sentence: Non-Parole Period:		3 years’ imprisonment 18 months
Pre-sentence Detention Declared:		151 days
Section 6AAA Statement:		4 years and 6 months’ imprisonment, with a non-parole period of 3 years
Other Relevant Orders: Disposal order pursuant to s 78(1) of the Confiscation Act 1997.

1. The applicant seeks leave to appeal against sentence on the following grounds:

   1.The sentencing judge erred in failing to have regard to the principles enunciated in Akoka v The Queen and in failing to moderate the sentence on account of the three-month period that the applicant spent in residential rehabilitation.

   2.       The sentence imposed on charge 2 is manifestly excessive.

Offending circumstances 

1. At the time of the offending the applicant lived at his parents’ house. Both parents were overseas for several months at the time of offending.

2. A police investigation entitled ‘Operation Round-up 2019’ was conducted in May 2019 into the activities of Jake Eldridge and Kerby Chilcott. Police gained intelligence that these young men were assisting the applicant to ‘house-sit’ his parents’ house during their overseas travels.

3. Police searched the applicant’s residence on 11 July 2019. They located three petrol containers and a bag containing 10 plastic bottles of liquid in a vent in the laundry. They also found 3 bottles of liquid in the applicant’s bedroom. The liquid contents of these items were subsequently analysed by the Victoria Police Forensic Services Centre. In total 18,969.4 grams of 1,4 butanediol was revealed as a result of that analysis (Charge 2 – trafficking in a drug of dependence).

4. Police also located a crystal substance on the applicant’s bed which contained, upon analysis, 0.3 grams of methylamphetamine (Charge 1 – possession of a drug of dependence). Also found in the bedroom was a bottle of pills, each containing 2.5 grams of MDMA (Charge 3 – possession of a drug of dependence).

5. Non drug-related items were also seized from the applicant’s bedroom including a Medicare card in the family name of Omar Taleb (Charge 4 – handle stolen goods) and a Westpac credit card in the name of Leigh Tromp (Charge 4 – handle stolen goods).

6. The applicant was interviewed and, aside from admitting that he resided at his parents’ house, exercised his right to silence.

7. A DNA comparison provided very strong support for the proposition that the applicant contributed to a mixed DNA profile found on each of the petrol containers. Chilcott and Eldridge were unable to be linked to any of the three containers.

8. 1,4 butanediol is a drug of dependence, as specified in column 1 of Part 1 of Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’) as are methylamphetamine and MDMA.

9. The threshold for a commercial quantity of 1,4 butanediol is two kilograms. That is approximately 10 per cent of the quantity seized. Notwithstanding this the applicant pleaded guilty to trafficking simpliciter and was dealt with on this basis. The basis of his plea was that it could not be proven to the criminal standard that the applicant had knowledge or belief that there was a significant risk that the quantity of the drug exceeded the two-kilogram threshold imposed by the Act.

The plea hearing

1. The applicant’s counsel admitted the criminal record. In short compass it is both relevant and extensive. He admitted 13 court appearances over the nine years preceding the offending. He has previously been sentenced for at least three offences of trafficking in a drug of dependence, including one involving a commercial quantity of GHB and numerous offences of possession of a drug of dependence. The applicant also admitted numerous dishonesty-related offences. He has been dealt with on several occasions for breaching Community Correction Orders (‘CCOs’). At the time of the commission of the sentences the subject of this application the applicant was subject to a 15-month CCO and had only recently been released from prison.

2. By any measure this prior criminal history is unimpressive.  

3. The centrepiece of the applicant’s plea was that, despite this unimpressive history, since his release on bail at the end of 2019, for a period of more than two years he had made great strides towards rehabilitation:

   (a)He was bailed to DayHab, a residential drug treatment program and was an inpatient for 90 days, then for a time participated in their ‘aftercare program’. The pandemic ended that participation.

   (b)He has attended Narcotics Anonymous and Alcoholics Anonymous programs and has progressed in their 12-step programs.

   (c)He had produced clean drug screening over a lengthy period, and engaged in monthly one-on-one drug counselling from October 2020 to the date of the first plea hearing. A letter was tendered from his drug counsellor Ms Doyle who described his engagement as exemplary.

   (d)He has embarked on a new relationship which commenced just before his arrest on these charges. The couple were expecting their first child in March/April 2022. His partner provided a reference and spoke of a dramatic change after he had been bailed.

   (e)He is a qualified carpenter and has been working full-time in this role since being released on bail. Further, at the time of the plea hearing he was two years into a plumbing apprenticeship.

4. It was submitted that the applicant’s pre-sentence detention (151 days) was sufficient to address the need for both forms of deterrence and denunciation, and ‘to the extent it does not, a CCO in combination does so’. Reliance was placed on the fact and timing of the pleas of guilty and the asserted significant utilitarian benefit arising from those pleas, the fact that the pleas were made during the pandemic, and the fact that the pleas exhibited remorse. Delay was a significant fact relied upon as 30 months had passed between the applicant’s arrest and plea. This delay was said to affect the applicant’s rehabilitation — the prospects of which were submitted to be excellent.

5. The respondent contended that given the applicant’s prior history and the seriousness of charge 2, which carried a maximum of 15 years’ imprisonment, and notwithstanding the applicant’s impressive efforts at reformation, the only appropriate sentence was a term of imprisonment with a non-parole period. Upon enquiry by the judge, the prosecutor accepted that ‘other factors’ came into play which might warrant a relatively disparate non-parole period.

6. The ‘other factors’ were of course the applicant’s unusually impressive efforts to rehabilitate himself.

The judge’s reasons for sentence  

1. The judge accepted that the applicant pleaded guilty as soon as the prosecution elected not to proceed with the more serious commercial quantity trafficking charge. In these circumstances his Honour accepted that the pleas of guilty were entered at an early stage of the proceeding. After describing the applicant in similar terms to paragraphs [4]–[12] of these reasons the judge then set out the applicant’s ‘extensive and very relevant prior criminal history’.[2]

   [2]Reasons, [19].

2. The judge then set out the applicant’s background. That background can be summarised as follows:

   (a)The applicant turns 31 in January 2022.

   (b)He comes from a supportive family, completed primary and secondary school ‘without issue’ and then completed a carpentry apprenticeship.

   (c)He commenced using drugs after completing his education — his descent into drug use is mirrored in his prior convictions.

   (d)His daughter Savannah was born on 29 March 2022.

   (e)In the nearly three years since offending the applicant had made concerted and impressive efforts to turn his life around and is well advanced in his plumbing apprenticeship.

3. The judge noted that the applicant could rely upon the following matters in mitigation:  his assistance to the police during the search; his early plea of guilty; his remorse as evidenced by that plea and his efforts at rehabilitation as well as the utilitarian value of the plea — which was enhanced by it occurring during the pandemic at a time of intense listing pressures.

4. The judge further noted the onerous custodial conditions that prevailed during the pandemic, and the anxiety about being infected with the virus whilst confined in a custodial setting.

5. The delay has twin significance — it meant firstly that the applicant has had this matter hanging over his head for nearly three years with the associated uncertainty and anxiety, and secondly that the applicant has seized the opportunity to reform. The judge then summarised these efforts which we will not repeat.

6. The judge referred to references tendered on the plea which were authored by the applicant’s partner, his older brother and three close friends. All spoke of his positive ‘turn-around’ since being granted bail. The judge recited the contents of a letter from Ms Kircher, a clinical counsellor at DayHab, in which she set out the applicant’s participation in their 90-day Intensive Addiction program, as a full time inpatient client. The author believed that the applicant had made significant gains towards achieving recovery. He committed to the aftercare program and has engaged regularly at Narcotics Anonymous. His GP, Dr Merhi, also noted the applicant’s efforts towards rehabilitation. The judge also referred to a letter from Kristy Doyle, drug counsellor, who described the applicant’s engagement with her over a period of 12 months and opined that the applicant was committed to maintaining abstinence. Some level of support for these positive opinions was found in the negative drug screens which the applicant voluntarily provided — 21 samples in 2020 between June and December, a single sample in 2021, and two samples in early 2022.   

7. His Honour also considered a letter from the applicant’s employer Westgate Plumbing which set out details of the applicant’s apprenticeship from November 2020 to May 2022. The applicant was described as a punctual and respectful employee.

8. The judge then turned to his evaluation of the offending. He stated that the trafficking offence in charge 2 ‘represents a serious example of an offence that carries a relatively high maximum of 15 years’ imprisonment’. His Honour then said:

   [W]hilst you are not to be sentenced as if you knew or believed that the amount of that drug equated to or exceeded the threshold amount for a commercial quantity, it is clear that any such knowledge or belief possessed by you must have been one that related to a quantity at the upper reaches of the range applicable to a trafficking simpliciter charge. That, in itself, is a significant matter to be taken into account when assessing your moral culpability in respect of this offence, albeit that it is also necessary to have regard to the lower financial reward that is achievable for this type of drug compared to many other types. The fact that you committed this offence while subject to a community correction order imposed for offences that included two of trafficking in a drug of dependence, is a significant aggravating feature of this offence and elevates your level of moral culpability for it.[3]

   We interpose to observe that there is no error in these remarks and we agree with them.  

   [3]Reasons, [43].

9. The judge stated that the other two drug charges involved relatively small amounts for the applicant’s own use, but were aggravated by being committed whilst on a CCO imposed in part for offending of a similar nature.

10. His Honour considered that the applicant’s prior history of trafficking and possession of drugs of dependence was relevant to an assessment of his moral culpability for the offences the subject of charges 1, 2 and 3. His Honour regarded the handling stolen goods charge to be neither a serious nor trivial example of an offence that carries a significant maximum penalty.

11. The judge remarked that significant weight must be given to the principles of denunciation and general deterrence, particularly in relation to charge 2.

    The community is rightly concerned about the prevalence and destructive nature of drug trafficking and justifiably expects that when a court sentences an offender for this type of offending it will impose a sentence that makes it clear that such serious criminal conduct is totally unacceptable to a civilised society and which provides a suitable measure of discouragement to others in the community that might be contemplating acting in a similar way.[4]

    [4]Reasons, [47].

12. No exception was taken to these remarks on this application. Again, we agree with them.

13. His Honour considered that weight ought to be given to the protection of the community, and that specific deterrence ought be tempered given the applicant’s ‘impressive steps … to address his serious drug addiction and establish a pro-social lifestyle centred around his partner, infant daughter and stable employment …’[5] While remaining relevant they were not to be given the same degree of emphasis that would have been required absent the applicant’s positive lifestyle changes.

    [5]Reasons, [48].

14. His Honour considered that this relatively young man (who was 31 years old) appeared to be maturing and reassessing his past self-destructive life choices. Balancing the past with the recent past and projecting into the future the judge concluded that the applicant’s prospects for rehabilitation were ‘reasonably good’ although it would be ‘naive to think that longer-term success was going to be easy …’[6]

    [6]Reasons, [49].

15. His Honour noted that the sentencing principle of parsimony was ‘brought into sharp focus when, as here, an offender with a serious criminal history falls to be sentenced for serious criminal offending in circumstances where he has made positive progress over a significant period …’[7] The judge also took into account the principle of totality.  

    [7]Reasons, [51].

16. The judge then stated:

    Having considered each party’s submissions and all of the relevant circumstances of this case, I have ultimately come to the firm conclusion that a combination sentence, even one that incorporated a further 12 months in custody, would not represent a just punishment for this offending, and such a sentence would simply fail to give the requisite recognition and weight to a number of important sentencing considerations, including general deterrence and denunciation.

    In my view this case demands the imposition of a custodial sentence in the form of a head sentence with a non-parole period.

    That said, however, it must also be noted that the matters in mitigation that are able to be relied on by Mr Sengul are significant and have influenced me to impose a materially lesser sentence than I otherwise would have, including a non-parole period that is somewhat disparate when viewed against the head sentence. I have taken that course in order to keep any sentence to the minimum that the justice of this case requires and in order to promote and encourage Mr Sengul’s improved prospects of rehabilitation.[8]

    [8]Reasons, [56]–[58].

17. These sentencing remarks are a model of clarity and balance.

This application

Ground 1

1. This ground contends that the judge erred in failing to have regard to the principles enunciated in Akoka v The Queen[9] and in failing to moderate the sentence on account of the three-month period that the applicant spent in residential rehabilitation.

   [9][2017] VSCA 214 (‘Akoka’).

2. In Akoka v The Queen[10] this Court stated that where there is sufficient evidence to establish that an offender’s actual stay at a residential rehabilitation facility constituted quasi-custody, the punitive nature of the residential rehabilitation ought be reflected in the overall synthesis by a reduction in the sentence that would otherwise be imposed. The assessment of the nature and extent of any quasi-custody must be evidence-based and considered on a case-by-case basis.

   [10]Akoka [2017] VSCA 214, [105]–[112] (Warren CJ, Kyrou and Redlich JJA).

3. In Romero v The Queen[11] this Court made observations about the nature of this type of application:

   In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea.[12]

   [11](2011) 32 VR 486; [2011] VSCA 45 (‘Romero’).

   [12]Romero (2011) 32 VR 486, 489 [11] (Redlich JA, Buchanan and Mandie JJA agreeing); [2011] VSCA 45.

4. The applicant was represented on his plea by an experienced senior junior counsel. Reliance was placed on the applicant’s three months as a residential client at DayHab as evidence of the evolving process of rehabilitation. No submission was advanced either in writing or orally concerning some type of ‘Akoka’ allowance in the applicant’s thorough plea submissions. In these circumstances it is unsurprising that the judge did not mention any type of ‘Akoka’ allowance.

5. In these circumstances no valid criticism can be made of his Honour for not referring to the Akoka principles. Further, even if counsel were to have advanced such an argument, it would have been unsupported by any sufficient evidence concerning the quasi-custodial conditions at the rehabilitation facility. In Mourkakos v The Queen[13] the Court said:

   Akoka makes it clear that there must be a sufficient evidentiary basis for a sentencing court to give a discount on sentence due to an offender’s stay at a residential rehabilitation facility. That evidence must describe in sufficient detail the restrictions on the offender’s liberty to which the offender was actually subject during his or her stay at the facility in order to satisfy the court on the balance of probabilities that that stay constituted quasi-custody, as that term was explained by Akoka and the authorities to which it referred.[14]  

   [13][2018] VSCA 26 (‘Mourkakos’).

   [14]Mourkakos [2018] VSCA 26, [149] (Whelan, Santamaria and Kyrou JJA).

1. Counsel on the plea had much to say in his client’s favour, and did so with care and eloquence. There was no benefit to be achieved by cluttering up those submissions with something he could not prove. This application is not the occasion for a reformulation of the case below.

2. Leave to appeal under this ground must be refused.

Ground 2

1. Manifest excess grounds are difficult to establish.[15] The applicant must demonstrate that the sentence imposed was wholly outside the range of sentences that were available.[16] It is insufficient for this Court to conclude that the sentence imposed at first instance is stern, or different to the sentence it would have imposed at first instance.[17] The sentence imposed must bespeak some underlying error of principle.[18]

   [15]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

   [16]Ibid.

   [17]Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).

   [18]Ibid.

2. On this ground the arguments before the Court substantially rehearsed the arguments put below. The tension between the applicant’s sterling and, so far, successful efforts of rehabilitation, on the one hand — and the gravity of his offending compounded by his prior criminal history, on the other — starkly exposed what a difficult sentencing exercise this was.

3. While the applicant’s efforts at reformation are commendable and entitle him to a significantly lesser sentence than would otherwise have been imposed, we consider that his Honour delivered on this entitlement. The applicant’s prior criminal history, including his drug trafficking convictions, and the gravity of the offending itself, particularly on charge 2, meant that aspects of general deterrence, denunciation and protection of the community needed to assume some importance in the sentencing calculus. In our view on charge 2, the sentence of three years’ imprisonment for a serious example of trafficking in a drug of addiction for a three-time trafficking prior offender can only be described as modest. It represents 20 per cent of the maximum penalty. We consider that the powerful mitigating features called in aid by the applicant are fully reflected in both the total effective head sentence of three years and in the minimum term of 18 months which in itself is a most lenient disposition. We are unable to discern any error in his Honour’s comprehensive sentencing remarks, nor in the sentence actually imposed.

4. In reaching this conclusion we have not undervalued the applicant’s remarkable efforts of self-reformation — they speak for themselves and we encourage him to return to his family, work, and pro-social lifestyle when he is paroled. We note that he is eligible for parole in a few weeks.

5. Leave to appeal under ground 2 will be refused.

   ---