Velevski v the Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0705

PEPE VELEVSKI

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 90
JUDGMENT APPEALED FROM:	R v Velevski, Unreported 19 June 2009, County Court of Victoria (Judge McInerney)

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CRIMINAL LAW – Sentencing – Parity – Lesser role in trafficking of a drug of dependence should result in lesser sentence – Sentence of 4½ years’ imprisonment on each of the two counts of trafficking in different drugs of dependence in a commercial quantity appropriate – No relevant distinction in criminality between single date count and between dates count.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Robert Stary & Assocs
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Habersberger AJA, for the reasons his Honour has stated, that the application for leave to appeal against sentence should be allowed, the appeal instituted instanter and allowed, the sentence passed below set aside and in lieu thereof the appellant be re-sentenced in the manner proposed by his Honour.

MANDIE JA:

I also agree.

HABERSBERGER AJA:

On 25 May 2009, Pepe Velevski (‘the applicant’), pleaded guilty before the County Court to one count of trafficking between 22 March 2005 and 28 July 2005 in a drug of dependence, namely 3,4–Methylenedioxy-N-Methylamphetamine (MDMA), in a quantity not less than a commercial quantity applicable to that drug, one count of trafficking on 28 July 2005 in a drug of dependence, namely pseudoephedrine, in a quantity not less than a commercial quantity applicable to that drug and one count of trafficking between 22 March 2005 and 28 July 2005 in a drug of dependence, namely methylamphetamine.

On 19 June 2009, after hearing a plea in mitigation of penalty the learned judge sentenced the applicant to four-and-a-half years’ imprisonment on count 1, four-and-a-half years’ imprisonment on count 2 and two-and-a-half years’ imprisonment on count 3. His Honour ordered that 18 months of the sentence imposed on count 2 and one year of the sentence on count 3 be served cumulatively upon the sentence imposed on count 1 and upon each other, making a total effective sentence of seven years’ imprisonment. His Honour fixed a period of three years and six months before the applicant was eligible to be released on parole.

The maximum penalty for trafficking in a commercial quantity of a drug of

dependence is 25 years’ imprisonment.[1] The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.[2]

[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA.

[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AC.

The applicant seeks leave to appeal against that sentence on four grounds:

1.The individual sentences, the total effective sentence and the non-parole period are each manifestly excessive.
2.The learned sentencing judge erred in his assessment of the level of the seriousness of the offending by failing to find that the applicant’s level of moral culpability was reduced to a degree because of the link between his drug addiction and the offending.
3.The extent of the orders for cumulation was unjustified and results in a total effective sentence that offends totality.
4.The learned sentencing judge erred in the application of the parity principle by imposing an identical sentence on the applicant and George Cancer in relation to count 3 (trafficking methylamphetamine).

The applicant was born on 13 September 1973, and was 35 years of age at the time of sentencing. The applicant was raised in St Albans, by his parents, who were employed until retirement, following their migration from Macedonia over 40 years ago. The applicant completed year 12 and then attended university for about a year before leaving to join the workforce. Shortly thereafter, he started using drugs and became involved in the nightclub scene. According to his Honour’s sentencing remarks, the applicant was using up to a gram of ice and taking 30 to 40 ice tablets per day.

The applicant had two prior matters, in respect of which no convictions were recorded, for possession of cannabis and failure to answer bail, which occurred in 1997.

The charges against the applicant arose out of two police operations which resulted in numerous individuals being identified and charged. One of these persons was George Cancer who was suspected of dealing in drugs. As a result of monitoring Mr Cancer’s telephone communications and certain surveillance evidence, the applicant and others were identified as persons involved in the distribution of drugs with or for Mr Cancer.

The Crown case against the applicant was that the intercepted materials disclosed drug trafficking by the applicant of substantial quantities over the four month period. The evidence led by the Crown at the plea hearing, with the consent of the applicant’s counsel, indicated that the applicant was identified by the police on 1 February 2005, and that his offending occurred within the period from 11 April 2005 to the date of his arrest on 28 July 2005. The applicant was more heavily involved in May and June 2005 when Mr Cancer was away on holidays.

Although the evidence did not reveal precise quantities with respect to the trafficking of MDMA, the plea proceeded on the basis that some 612 ecstasy tablets and 23.7 grams of MDMA were found in the applicant’s possession when he was arrested and a concession by the applicant that given the intercepted communications he had been involved in trafficking a commercial quantity.

Count 2 was based on the fact that 8,950 pseudoephedrine based cold and flu tablets were found in the applicant’s possession at the time of his arrest. This converted into 525 grams of pseudoephedrine.

Count 3 was based of the applicant’s possession of 5.6 grams of methylamphetamine at the time of his arrest and his concession that he was involved in trafficking in that drug over the four month period to the degree indicated.

It seems that there was a loose arrangement between Mr Cancer and the applicant whereby the applicant would pay Mr Cancer for the drugs he obtained from the proceeds of the sales he later made. The intercepted communications indicated that at one stage the applicant owed Mr Cancer up to $50,000 for drugs he had purchased but more often he owed in the order of $2,000 to $5,000 at any one time.

The applicant was arrested and held in custody for 14 days, which was the first time he had been in custody. Upon being released on bail the applicant was subject to a curfew for approximately 12 months. He was also restricted from being in the vicinity of nightclubs. The applicant participated in the credit bail program at the Magistrates’ Court, which assists drug users to overcome addiction. The applicant completed the program and was discharged from it. The program involved the applicant’s attendance at counselling and a psychological report from Mr Bernard Healey was tendered at the plea. That report indicated that the applicant did not have any specific psychological issues, and that he was raised in a caring and supportive home with his younger brother.

There was a long delay between the applicant’s arrest and the date of the hearing and as such the applicant spent approximately four years on bail. Following his arrest and release on bail the applicant was employed as a truck driver and subsequently a labourer. The applicant lived in a unit next to his parents’ home. Having ceased his drug use and involvement in the nightclub scene, the applicant began to see a lot more of his family, and he returned to play soccer with a local club.

In sentencing the applicant, his Honour made the following comments:

In the Crown’s opening it is clear that you were a minion of Mr Cancer and were part of the continued use of his apartment as a basis for trading, assembling and money counting and the contacting of clients and your agents to effect this particular trafficking as detailed in these three counts.
You were described in opening by the learned prosecutor as a gofer or a sales agent for Mr Cancer. It would appear that you received no great individual profit from your operations apart from your own ability to consume drugs. You have not as a result of these circumstances acquired any great assets as happens sometimes to those higher up the chain. You were designated by the learned prosecutor essentially of one level up from street level, that was accepted by [the applicant’s counsel] …
…
No one enjoys sentencing young men, especially intelligent men like you, to gaol. However general deterrence and specific deterrence are very important here as is punishment. You have been involved in serious crime and the community would be scandalised were you not given appropriate punishment. However, in the interests of the community, one takes into account the balancing factors that I have referred to and a very important factor has been the self-rehabilitation that you have effected during that period and there was, in my view, strong evidence before this court of that rehabilitation.

Ground 4 – Parity

It is convenient to deal with ground 4 first. Counsel for the applicant submitted that the learned sentencing judge had erred by not imposing a lesser sentence on the applicant’s count 3 than he had imposed on Mr Cancer in respect of his count 2. Both counts were for trafficking in methylamphetamine and the same sentence of two-and-a-half years’ imprisonment was imposed.
It was submitted that his Honour was bound to impose a lesser sentence on the applicant than Mr Cancer received given that:
(a) the applicant’s lesser role in the offending;
(b)the fact that Mr Cancer was sentenced on this count as a serious drug offender;
(c)although the applicant’s period of trafficking was longer than Mr Cancer’s – between 22 March and 28 July 2005 as against 10 May to 28 July 2005, his Honour accepted that the real criminality of the applicant was in May and June 2005 while Mr Cancer was on holidays; and
(d) the applicant’s offending was linked to his drug addiction.
Counsel for the respondent submitted that no error had occurred because the applicant had, in effect, stepped into Mr Cancer’s shoes by the assistance he gave while Mr Cancer was on holidays and that such conduct tended towards equality of culpability. Counsel also pointed out that, despite what was said by his Honour when sentencing Mr Cancer on his count 2, it was not an offence within s 6B(1) of the Sentencing Act 1991 and therefore the serious drug offender provisions did not apply.
In my respectful opinion, his Honour did err by imposing the same sentence on the applicant and Mr Cancer for the offence of trafficking in methylamphetamine. Their roles were not equivalent and therefore their culpability was not the same. Mr Cancer was clearly ‘higher up the chain’, as his Honour put it. His Honour accepted that the applicant was ‘a minion of Mr Cancer’ or his ‘gofer’ or ‘sales agent’. This distinction was not removed by the fact that the applicant might have looked after Mr Cancer’s drug dealing business while the latter was on holidays.
Further, the fact that his Honour, apparently mistakenly, sentenced Mr Cancer on his count 2 as a serious drug offender underlines the justifiable sense of grievance that the applicant has when he received exactly the same sentence without being treated as a serious drug offender.
I do not consider that the slightly longer period of the applicant’s trafficking justified the equality of sentencing. As counsel for the applicant argued, the learned sentencing judge accepted that the applicant’s criminality essentially occurred in May and June 2005.
Finally, I am not persuaded that there should have been any difference in sentencing on the basis of the applicant’s drug addiction. Reference was made by his Honour in his reasons for sentence in respect of Mr Cancer to Mr Cancer’s ‘daily use of methylamphetamine and a range of drugs’. On the other hand, Mr Cancer clearly was making a lot of money from his drug dealing whereas, according to his Honour, the applicant received ‘no great individual profit’ and had not ‘acquired any great assets’. The applicant’s lack of financial gain, as his Honour recognised, reflected his lower level in the hierarchy compared with Mr Cancer.
In my opinion, the principle of parity required that the applicant should receive a lesser sentence than Mr Cancer for the offence of trafficking in methylamphetamine. This conclusion means that the sentencing discretion is re-opened and that it is not necessary to consider the other grounds of appeal.
Re-sentencing
In arguing the first ground of appeal, manifest excess, counsel for the applicant submitted that there was ‘a very powerful set of mitigating factors’ upon which the applicant could rely. First, the applicant was a first offender. Second, the applicant pleaded guilty at the earliest possible stage, given that the Crown had not been willing to accept pleas to these counts earlier. Agreement on the plea was reached in October 2008. Third, the implications of a delay of nearly four years between the offence and sentence, during which time the applicant had demonstrated complete rehabilitation. Fourth, the exemplary rehabilitation achieved by the applicant following his arrest, evidenced by his successful completion of the credit bail program, the fact that he had not re-offended and had complied with strict bail conditions, including a curfew between 11.00 pm and 6.00 am and daily reporting for a 12 month period, his full time employment, the support of his family, his seeking assistance from a counsellor, and his expressions of remorse to family members. Fifth, the strong evidence of good character. And sixth, the fact that the applicant’s offending had assisted him to feed his own drug addiction.
Counsel for the applicant also submitted that the delay between his arrest and sentencing of approximately four years, ‘was a powerful mitigatory factor in its own right which may, in fairness to the accused and in the public interest, call for an undue degree of leniency or mercy where rehabilitation has been demonstrated’. Counsel referred to R v Merrett[3] and DPP v Buhagiar and Heathcote.[4]
[3](2007) 14 VR 392, [35]-[36] (Maxwell P, with whom Chernov JA and Habersberger AJA agreed).
[4][1998] 4 VR 540, 547 (Buchanan and Batt JJA).
Emphasis was also placed by counsel for the applicant on the confined role of the applicant and on the fact that the prosecution’s case on count 1 was that in aggregate over the period charged the applicant had been involved in trafficking a commercial quantity and not that he had been involved over the period charged in trafficking commercial quantities.
The respondent’s submission was that the individual sentences imposed were within range, despite the mitigating factors, because, given the applicable maximum sentences for counts 1 and 2, even offences falling at the lower end of the range will result in substantial sentences. It was submitted that general deterrence was of great importance in this class of case.[5] Further, it was submitted that the importance of general deterrence was such that the personal circumstances of the accused will have less weight in such cases.[6] Even in the case of young offenders where rehabilitation loomed large as a sentencing factor, its weight was diminished in cases involving drug trafficking.[7]
[5]R v Berisha [1999] VSCA 112, [39]-[43] (Tadgell JA); R v Roberts (2004) 9 VR 295, {147] (Batt JA, with whom Buchanan and Chernov JJA agreed); R v Phong (2005) 12 VR 17, [85] (Charles JA, with whom Winneke ACJ and Chernov JA agreed).
[6]R v Leroy (1984) 13 Crim R 469, 474; R v Berisha [1999] VSCA 112, [27] (Charles JA, with whom Tadgell and Buchanan JJA agreed).
[7]R v Thomas [1999] VSCA 204, [16] (Callaway JA, with whom Tadgell and Ormiston JJA agreed); R v Harkness [2001] VSCA 87, [20] (Callaway JA, with whom Winneke ACJ and Ormiston JA relevantly agreed).
Despite the impressive list of mitigating factors advanced by counsel for the applicant, I consider that the sentences of four-and-a-half years’ imprisonment on counts 1 and 2 were appropriate. Those sentences were less than 20% of the maximum of 25 years for trafficking in a commercial quantity. Even if the applicant was at a low level in the hierarchy he has, as counsel for the respondent submitted, helped distribute a commercial quantity of two drugs into the community. General deterrence demanded sentences of this length.
In reaching this conclusion I have taken into account the submission by counsel for the applicant with respect to the second ground of appeal, namely, that insufficient weight was given to the applicant’s lesser moral culpability because of the link between the applicant’s drug addiction and his offending[8] and to the fact that his offending was not motivated purely by greed.[9] However, as counsel for the respondent submitted, this factor can only have limited weight in the context of commercial trafficking, where the amount distributed greatly exceeds that which is personally used, unlike the street level trafficker who deals in small amounts in order to support his or her own habit.
[8]R v Lacey (2007) 176 A Crim R 331 [12], [16] (Vincent and Redlich JJA and Habersberger AJA).
[9]R v Koumis (2008) 18 VR 434, [50], [54] (Redlich and Kellam JJA and Osborn AJA).
In relation to count 2, counsel for the applicant submitted that the sentence imposed was ‘inexplicable’ because it was a single date count and not a between dates count. In opening the plea hearing the prosecutor made clear that count 2 was based on a ‘one off event’. However, I do not follow the logic of this distinction, in the circumstances of this case. It could not be said here that because the count related only to one day it was an isolated episode that was ‘out of character‘. Rather, the criminality of the offence depends on the amount of the drug involved. The extended definition of ‘traffick’ in s 70 of the Drugs, Poisons and Controlled Substances Act 1981 includes having a drug of dependence ‘in possession for sale’.[10] Once it is accepted that the amount is not for personal use then it follows that the drug was in the applicant’s possession for the purposes of sale over a period of time.
[10]R v Djukic [2010] VSCA 65, [21] (Bongiorno JA).

As regards count 3, I have already concluded that the parity principle requires that the applicant’s sentence be less than the two-and-a-half years’ sentence imposed on Mr Cancer in respect of his count 2. I would order that the applicant be sentenced to two years’ imprisonment on count 3.

Turning then to cumulation, counsel for the applicant submitted that given the overlap in timing of the counts, the nexus between the offending and the applicant’s drug addiction, and the applicant’s role as a ‘minion’ of Mr Cancer, the prima facie rule of concurrency contained in s 18(1) of the Sentencing Act 1991 ought to have run much further. Counsel submitted that there was no sound reason for the degree of cumulation ordered and that as a result the total effective sentence offended totality.

Counsel for the respondent submitted that the cumulation of two years and six months on account of a second offence of trafficking in not less than a commercial quantity and trafficking in a drug of dependence was not excessive. He submitted that the second and third offences showed a pattern of lawlessness that increased the culpability of the applicant.

Cumulation is another area where, in the exercise of my sentencing discretion, I would reach a different conclusion to that at first instance. In my opinion, particularly given the overlap in timing of the counts and the rehabilitation attained by the applicant, cumulation should be limited. I would order that one year of the sentence imposed on count 2 and six months of the sentence imposed on count 3 be cumulated on the sentence imposed on count 1 and on each other. That makes a total effective sentence of six years’ imprisonment. I would order that the applicant serve a minimum of three years before being eligible for parole.

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[2010] VSCA 90

23 April 2010