Skubevski v the Queen
[2010] VSCA 91
•23 April 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 655 of 2009
| BILL SKUBEVSKI |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN AND MANDIE JJA and HABERSBERGER AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 March 2010 | |
DATE OF JUDGMENT: | 23 April 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 91 | |
JUDGMENT APPEALED FROM: | R v Skubevski (Unreported, County Court of Victoria, Judge Nixon, 27 May 2009) | |
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CRIMINAL LAW – Sentencing – Drug offences – Sentencing error by treating some counts as falling within serious offender provisions – Re-sentence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Croucher | Michael Gleeson & Associates |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Mandie JA.
MANDIE JA:
The applicant pleaded guilty to six drug offences and was sentenced in the County Court on 27 May 2009 as follows:
·Count 1: Trafficking in a drug of dependence between 23 October 2007 and 2 November 2007 – not less than a large commercial quantity (MDMA or ecstasy) (under s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the DPCS Act’) for which the maximum penalty was life imprisonment) – 8 years’ imprisonment;
·Count 2: Trafficking in a drug of dependence between 23 October 2007 and 2 November 2007 – not less than a commercial quantity (methylamphetamine) (under s 71AA of the DPCS Act for which the maximum penalty was 25 years’ imprisonments) – 5 years’ imprisonment;
·Count 3: Trafficking in a drug of dependence (methylamphetamine) on 22 June 2007 (under s 71AC of the DPCS Act for which the maximum penalty was 15 years’ imprisonment) - 18 months’ imprisonment;
·Count 4: Trafficking in a drug of dependence (MDMA) on 28 July 2005 (under s 71AC of the DPCS Act for which the maximum penalty was 15 years’ imprisonment) – 12 months’ imprisonment;
·Count 5: Possession of a drug of dependence (MDMA) on 22 June 2007 (under s 73 of the DPCS Act for which the maximum penalty was 5 years’ imprisonment) – 9 months’ imprisonment;
·Count 6: Possession of a drug of dependence (methylamphetamine) on 28 July 2005 (s 73 of the DPCS Act for which the maximum penalty was 5 years’ imprisonment) – 6 months’ imprisonment.
It was ordered that the sentences imposed on counts 5 and 6 be concurrent with each other and with the sentence imposed on count 1. It was further ordered that 12 months of the sentence imposed on count 2, 6 months of the sentence imposed on count 3 and 6 months of the sentence imposed on count 4 be cumulative upon the sentence imposed on count 1. This resulted in a total effective sentence of 10 years’ imprisonment and a non-parole period of 6 years and 6 months was fixed.
The applicant seeks leave to appeal against the sentences on 2 grounds:
1.The learned judge erred in sentencing on the basis that the [applicant] fell to be sentenced as a serious offender on counts 3 to 6 and that protection of the community must be regarded as the principal purpose for which the sentence was imposed on those counts.
2.The sentence on count 3, the directions for cumulation of the sentences on counts 3 and 4, the total effective sentence and the non-parole period are manifestly excessive and in breach of totality.
Circumstances
The applicant was born on 19 January 1964 and was aged between 41 and 43 years at the time of the offences. The applicant had a number of prior convictions including, relevantly, a previous conviction on 13 October 1999 of a number of offences including trafficking in a drug of dependence and possession of a drug of dependence (four charges). He was sentenced in relation to the trafficking offence to a term of imprisonment of five months, such sentence being wholly suspended for a period of nine months. The remaining charges were the subject of a fine.
The plea presentment covered counts relating to three separate drug matters. In relation to the first set of matters (counts 4 and 6) the applicant had been interviewed by police on 19 September 2005 and later charged by summons. In relation to the second set of offences (counts 3 and 5), these were charges that followed the execution by police of a search warrant at an address in Williamstown on 22 June 2007. In relation to the third set of offences (counts 1 and 2), these charges arose from the execution by police of a search warrant on 2 November 2007 at the same address in Williamstown when police located a large quantity of drugs, cash and other drug trafficking paraphernalia. The applicant had been committed for trial on, and pleaded not guilty to, the first set of charges on 31 May 2007 (that is, before the execution of the subsequent search warrants). The applicant was committed for trial on the second set of charges on 28 February 2008 and he reserved his plea. Subsequently, the applicant pleaded guilty to all of the charges at an arraignment on 20 October 2008 on which date the plea presentment was filed containing the six counts set out above.
In and after January 2005 police from the Major Drug Investigation Division were investigating the trafficking of various drugs by one Rodrigues-Rios. The police established that one George Cancer was supplying large quantities of ecstasy tablets to Rodrigues-Rios. As a result of various surveillance activities, the police identified the applicant as an associate of Cancer. On 28 July 2005 a search warrant was executed at the applicant’s then premises in Yarraville. During the course of the search the police located numerous small bags containing methylamphetamine and a quantity of MDMA in excess of the trafficable quantity (3.5g) (counts 4 and 6). At the time of execution of the search warrant the applicant was overseas. He was later interviewed by police, released and charged by summons.
On 22 June 2007 police executed a search warrant at premises in Williamstown. The applicant and his girlfriend were present at the time of the search. In the dining room of the premises police found assorted documents referring to various chemicals including methylamphetamine and other documents which referred to drug sales. The police also located two mobile phones which were connected in false names and an envelope containing a number of ecstasy tablets. In the kitchen of the premises police found a resealable plastic bag containing white powder, a set of electronic scales with traces of methylamphetamine on them and envelopes containing ecstasy tablets and a spiral notebook belonging to the applicant. A further quantity of white powder was found in a motor vehicle registered to the applicant which was parked outside the premises. Four bags containing methylamphetamine weighing 1.3g were located in a glasses case in a central console of the car (counts 3 and 5).
In August 2007 and thereafter police from the Altona North Regional Response Unit were conducting an investigation in relation to the trafficking of amphetamine and ecstasy by persons in Melbourne to customers in Tasmania. One Simon Radcliffe was identified as a major supplier of drugs from Melbourne to Tasmania. In the course of the investigation police, pursuant to warrant, monitored telephone calls between Radcliffe and a male identified as ‘Bill’ in relation to Radcliffe purchasing a large amount of drugs from ‘Bill’. The applicant was subsequently identified on 23 October 2007 as the driver of a vehicle (registered in the name of his girlfriend) which attended a car park and into which Radcliffe entered for some minutes. Subsequently, on 30 October 2007 Radcliffe posted packages to Tasmania – these parcels were intercepted and the contents examined and identified as drugs in substantial quantities, being ecstasy tablets and crystal methamphetamine (‘ice’). As a result the police executed a number of search warrants including one on the applicant’s premises in Williamstown where he resided with his girlfriend. Upon entry to the applicant’s premises, the police located two clear plastic bags[1] containing amphetamine which had fallen out of his girlfriend’s pyjama pants. Further, the police located about 2,000 ecstasy tablets and 220g of amphetamine located in a bread box in the kitchen. In addition, inside hollow shelving on the wall of the study police located $16,200 in cash, approximately 427g of amphetamine and approximately 21,000 ecstasy tablets. Also located during the search was another $1,150 in cash, six mobile phones, a large rear hydraulic meal press, digital scales and a vacuum sealer. As a result of the foregoing, the applicant was charged with the offences constituting counts 1 and 2.
[1]One bag contained a white rock/crystal substance weighing 6.5g that tested positive for amphetamines, and also a red coloured scoop. The other bag contained a similar substance weighing 1.9g but also tested positive for amphetamines.
Reasons of the sentencing judge
After referring to the various charges to which the applicant had pleaded guilty, the judge referred to the applicant’s prior convictions. The judge said that the fact that he had previously been sentenced to a term of imprisonment on a trafficking count, albeit that the sentence was wholly suspended, was a relevant prior conviction which should have sounded a clear warning to him that trafficking in a drug of dependence was a serious crime. The judge said that the applicant’s trafficking in ecstasy in July 2005 and trafficking in methylamphetamine in June 2007 (which of course were not prior convictions), was yet a further demonstration that the applicant’s trafficking in ecstasy and methylamphetamine between 22 October and 2 November 2007, which were by far the most serious of his crimes, was not an uncharacteristic aberration on his part. Rather it demonstrated a continuing attitude of disregard for the law.
After outlining the circumstances of the offending in detail, the judge referred to the seriousness of the crimes having regard to the various maximum penalties prescribed by Parliament.
The judge said that once the applicant was convicted on count 1 and sentenced to a term of imprisonment on that count, he would fall to be sentenced as a serious offender on the remaining counts on the presentment and the judge said that he therefore must regard the protection of the community as the principal purpose for which the sentence is imposed.
I note immediately that, on this appeal, the respondent rightly conceded that the judge was in error in sentencing the applicant as a serious offender on counts 3 to 6. This is because the offences constituted by counts 3 to 6 are not ‘drug offences’ or ‘relevant offences’ within the meaning of s 6B(1) and (3) of the Sentencing Act1991 (Vic). It was common ground that the judge was entitled to sentence the applicant as a serious offender on count 2.
The judge went on to say that, whilst the need to protect the community must remain the principal purpose for the imposition of the sentence on counts 2 to 6, he did not regard that as requiring him to impose a sentence which was longer than that which was proportionate to the gravity of the offence. His Honour said that to avoid imposing a sentence which would offend the important principle of totality, there would be a large measure of concurrency. The judge said that in any event the protection of the community was an important sentencing consideration so far as count 1 was concerned and that offence was obviously the most serious of the crimes that the applicant had committed.
The judge referred to other considerations including just punishment, deterrence to the applicant and denunciation. The judge said that the applicant was entitled to a discount for his pleas of guilty and although not made at an early stage, those pleas had resulted in the offences being ‘settled in the one presentment’. The judge said he would, in the circumstances, find that the pleas were early pleas of guilty that had assisted to facilitate the administration of justice and saved time and expense. The judge said that the applicant was entitled to a meaningful discount notwithstanding that on each occasion the applicant had been caught ‘red-handed’.
The judge then referred to the applicant’s personal circumstances including his employment history, his gambling problem, his family history and his personal use of drugs. The judge also referred to the applicant’s active and positive involvement in the Macedonian community. The judge accepted that the applicant was now remorseful.
The judge said that he also took into account that the delays in relation to counts 4 and 6 were inordinate and unacceptable and that there were some lesser delays in relation to the other charges including delays in relation to the plea itself. The judge said that there was no evidence that the applicant had enjoyed a lavish lifestyle apart from his significant gambling on a regular basis nor was there any evidence that he amassed any real assets as a result of his drug trafficking – however the offence seriousness was high and there was a prior conviction for trafficking.
After considering the nature of each offence and the relationship if any of one to the other, his Honour imposed the sentences referred to above.
Submissions
The applicant submitted that, given the error in sentencing the applicant as a serious offender on counts 3 to 6, this error had affected the sentences on those counts and the applicant should be resentenced on those counts, in particular on counts 3 and 4 which had been partially cumulated on the sentence imposed on count 1. The applicant accepted that counts 3 and 4 involved distinct offences but said that they were ‘dwarfed’ or very minor in the total picture. Further, the quantity of drugs involved in count 3 was minuscule. The applicant emphasised the
various factors in mitigation that had been recognised by the sentencing judge. The applicant submitted that a total effective sentence of around 9 years’ imprisonment with a non-parole period of five years’ imprisonment would be an appropriate result.
The respondent I think accepted, although with some diffidence, that the applicant had to be resentenced. If so, the respondent submitted that the sentences imposed on counts 3 and 4 were nevertheless within range and that the non-parole period appropriately reflected the seriousness of the offences.
Conclusion
In my opinion, leave to appeal should be granted and the appeal allowed and the appellant resentenced. However I would not alter the sentences other than in relation to counts 3 and 4 that were the subject of the appellant’s submissions. I think that, in all the circumstances, the appropriate sentence on count 3 should be reduced to 12 months but that the sentence on count 4 should remain as 12 months. However only three months of the sentence imposed on count 3 and three months of the sentence imposed on count 4 should be cumulative on the sentence imposed on count 1. Apart from what I consider to be the appropriate consequences as aforesaid of the conceded error, I would endorse the reasoning of the very experienced sentencing judge. The result would be a total effective sentence of nine years and six months and I would fix a non-parole period of six years.
HABERSBERGER AJA:
I agree with Mandie JA.
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