Trikilis v The Queen

[2011] VSCA 340

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0445
GEORGE TRIKILIS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2011
DATE OF JUDGMENT/ORDER:	7 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 340	First Revision: 9 November 2011
JUDGMENT APPEALED FROM:	R v Trikilis (Unreported, County Court of Victoria, Judge Douglas, 19 November 2010

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CRIMINAL LAW – Sentence – Trafficking and possession of drugs of dependence – Sentence of 2 years’ imprisonment and cumulation of 6 months on a count of trafficking 271.6 grams of steroids manifestly excessive – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Valos Black and Assocs
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA
HARPER JA:

1. The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of trafficking in a drug of dependence, being MDMA, methylamphetamine and cocaine, in not less than a large commercial quantity (count 1);  a count of trafficking in a drug of dependence, anabolic and androgenic steroidal agent (count 2);  and a count of possession of a drug of dependence, cannabis (count 3). 

1. A plea was conducted and on 19 November 2010, the appellant was sentenced to be imprisoned for a term of 7 years on count 1, for a term of 3 years and 6 months on count 2, and on count 3 was fined $100.  The sentencing judge directed that 2 years of the sentence on count 2 be cumulated on the sentence on count 1, creating a total effective sentence of 9 years’ imprisonment. 

1. On 3 September 2009, the appellant was sentenced by a different judge in the County Court to a total effective sentence of 4 years’ imprisonment, with a minimum term of 2 years and 9 months’ imprisonment, for drug offences.  The sentencing judge in the present case ordered that 2 years of the sentence which she imposed be served concurrently with the sentence imposed by the first judge and fixed a new non‑parole period of 7 years’ imprisonment. 

1. The grounds of appeal are as follows:

1.        The learned sentencing judge erred by:

(a)failing adequately to warn, or place counsel for the appellant on notice, that she intended to order substantial cumulation between the sentences she would impose on counts 1 and 2;  and

(b)cumulating excessively two years of the sentence imposed on count 2 upon the sentence imposed on count 1.

2.        The learned sentencing judge erred by:

(a)       imposing individual terms of imprisonment;  and

(b)       making orders for cumulation

which are, in particular in the light of the sentence the appellant was already serving, manifestly excessive.          

1. The appellant’s trafficking was alleged to have occurred between 24 July 2008 and 27 January 2009.  The cannabis the subject matter of count 3 was seized on 27 January 2009.  In the period of the alleged trafficking, the appellant met an undercover police officer at the appellant’s residence and sold quantities of various drugs to the police officer.  On 27 January 2009, the police searched the appellant’s premises and found drugs, accoutrements of trafficking and cash in an amount of $8580.  The quantities of drugs the subject matter of the counts were 4.143 kilograms of MDMA, 237.6 grams of methylamphetamine, 44.5 grams of cocaine, 271.6 grams of steroids and 9 grams of cannabis.  It was common ground that the cannabis was for the personal use of the appellant. 

1. The appellant is 49 years’ old.  He was born in Australia to parents who immigrated from Greece.  The appellant left high school halfway through Year 12 and then was employed in a number of jobs, including working in the security industry in nightclubs.  That activity led to the appellant attending gymnasiums and becoming involved in the use of steroids.  The appellant had some 25 previous convictions from eight previous court appearances, including convictions for drug offences and offences of dishonesty, such as theft and handling stolen goods. 

1. The appellant married and adopted his wife’s two daughters.  The appellant and his wife had three further children, who were in their teens when he was sentenced. 

1. In 2001, the appellant commenced a business of house painting, which failed.  Subsequently, the appellant was defrauded of a considerable sum of money which the appellant had borrowed from a bank.  The appellant’s wife developed a gambling habit, which contributed to the appellant’s financial problems and led to him separating from his wife in 2007.  The sentencing judge accepted that the appellant committed the offences principally to obtain funds to pay outstanding bills.  The sentencing judge also accepted that the appellant had taken responsibility for his offending and was remorseful.  She took into account the fact that incarceration would be more difficult for the appellant than for others.  The sentencing judge said that in her opinion, the appellant’s ‘chances of rehabilitation are good’.  She continued: 

The reason you committed these offences was a shortage of money through your financial mismanagement and your succumbing to temptation to find an easy way to pay your outstanding debts, which seemed overwhelming to you at the time.  I accept a psychologist’s opinion as to your state of mind at the time you committed these offences. 

1. The psychologist referred to by the sentencing judge reported that the appellant suffered from a major depressive episode, a generalised anxiety disorder and a significant verbal learning disorder.  The psychologist reported: 

Mr Trikilis’ decision to engage in the offending behaviour was made while he was experiencing excessive anxiety, restlessness, impaired thinking and reasoning and sleep disturbance in the context of his generalised anxiety disorder and impaired verbal reasoning.  It appeared that Mr Trikilis engaged in the offending behaviour to reduce his financial stress and provide for his children.  Mr Trikilis evidences significant remorse for his offending behaviour.  He demonstrated significant insight into the negative effect his behaviour had on his mother and children.

1. The appellant abandoned ground 1(a).  Ground 1(b), however, was pressed.  We consider that the sentence on count 2 and the extent of cumulation ordered by the sentencing judge cannot be justified.  Were it not for the fact that there is no provision in the Drugs, Poisons and Controlled Substances Act 1981 constituting an offence of trafficking in a commercial quantity of steroids, the offending the subject matter of count 2 would have been subsumed by count 1.  Although the steroids found in the possession of the appellant amounted to 271.6 grams, in our opinion the trafficking the subject matter of count 2 could only marginally have extended the appellant’s offending overall.  The cumulation of two years’ imprisonment, in our view, was excessive.

1. We are of the opinion that the sentence on count 1 was appropriate.  We would re‑sentence the appellant to be imprisoned for a term of seven years on count 1, for a term of one year on count 2, and we would order that three months of the sentence on that count be cumulated on the sentence on count 1.  We would fix a new non‑parole period of five and a half years’ imprisonment before the appellant is to be eligible for parole.  We would confirm the fine of $300 imposed on count 3.  But for the plea of guilty, we would have imposed a total effective sentence of nine years’ imprisonment.

1. Accordingly, the orders of the Court will be as follows:  The appeal is allowed, the sentence passed below is set aside and in lieu thereof, the appellant is sentenced to be imprisoned for a term of seven years on count 1 and for a term of one year on count 2.  The penalty on count 3 is confirmed.  Three months of the sentence on count 2 are to be served cumulatively on the sentence on count 1, creating a total effective sentence of seven years and three months’ imprisonment.  A minimum term of five years and six months’ imprisonment is fixed before appellant is to be eligible for parole.

1. (Discussion ensued)

1. In addition to the orders which have been pronounced in respect of the presentment that was before Judge Douglas, we will add this:  2 years of the sentence are to be served concurrently with the sentence imposed by Judge Chettle on 3 September 2009, making a total effective sentence of 9 years’ imprisonment.  A new global minimum term of 5 years and 6 months’ imprisonment is fixed.  It is declared that a period of 572 days not including today is to be reckoned as already served under the sentence and it is directed that the fact that that declaration has been made and its details be entered in the records of the Court.

1. (Discussion ensued)

1. The ancillary orders made in the court below are confirmed. 

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