Xi v The Queen

[2011] VSCA 342

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0450

ALICK BU XI

v

THE QUEEN

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JUDGES:	BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2011
DATE OF JUDGMENT/ORDER:	8 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 342
JUDGMENT APPEALED FROM:	County Court of Victoria at Melbourne, Judge Gucciardo, 6 December 2010

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CRIMINAL LAW – Sentence – Trafficking in drugs of dependence – Minor role – Sentence of 2 years’ imprisonment on a count of trafficking in MDMA and a sentence of 6 months’ imprisonment on a count of possession of cocaine for the offender’s own use manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S R Johns	Robert Stary & Assoc (Footscray)
For the Respondent	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN 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 methylamphetamine (count 1), one count of trafficking in a drug of dependence being MDMA (count 2) and one count of possessing a drug of dependence being cocaine (count 3). 

1. After a plea, the appellant was sentenced to be imprisoned for a term of 2 years on each of counts 1 and 2 and for a term of 6 months on count 3.  The sentencing judge ordered that 6 months of the sentence on count 2 be served cumulatively on the sentence on count 1, creating a total effective sentence of 2 years and 6 months’ imprisonment.  The sentencing judge directed that the appellant serve a non-parole period of 18 months’ imprisonment.

1. The police initiated an investigation into trafficking in drugs of dependence by one Nestor Bankovaki.  In the course of their investigations, the police identified the appellant as an associate of Bankovaki.  An undercover policeman made four purchases of methylamphetamine from the appellant, amounting in all to 25.6 grams, at a price of $19,900.  The sentencing judge accepted that the appellant’s role in the offending was that of a broker.  His role was exemplified by the fact that he received $1,000 of a purchase price of $9,500.  In addition to those sales, an analysis of telephone conversations by the appellant revealed that he trafficked in a further 5 grams of methylamphetamine.  The offending the subject matter of count 2 was revealed by a telephone conversation in which the appellant offered to sell to Bankovaki 50 ecstasy tablets.  Count 3 resulted from the execution of a search warrant at the appellant’s premises where a plastic bag containing 0.4 grams of cocaine was found.  The prosecutor conceded that the cocaine was not possessed by the appellant for a purpose related to trafficking.

1. The appellant made full admissions to the police, and told them that he engaged in the trafficking in order to satisfy a gambling debt.

1. The appellant is aged 43 years. 

1. The appellant migrated from Vietnam to Australia in 1984 when he was aged 16 years.  The appellant married in 1993 and has two children, a daughter aged 16 years and a son aged 14 years.  The appellant and his wife were divorced some six years’ ago.

1. The appellant was educated to Year 11 and worked for some ten years assembling air conditioning units.  He has been unemployed for the last ten years and has been receiving unemployment benefits.  The appellant has used cocaine and amphetamine but is not addicted to those substances.  In the four or five years before he was sentenced, the appellant gambled regularly and heavily.  According to a psychologist, whose report was tendered in the course of the plea, the appellant had a gambling addiction.  The sentencing judge accepted that the addiction and limited cognitive functioning meant that the appellant’s reasoning skills were compromised and he had difficulty in discerning viable alternatives to dealing in drugs.  His Honour said that ‘rehabilitation is not beyond the realm of possibilities’.  His Honour took into account the appellant’s gambling addiction coupled with his mental state in ameliorating the sentence, for he viewed the factors as linked and bearing upon his moral culpability.

1. The appellant had no prior convictions.

1. An application for leave to appeal against sentence was heard by Nettle JA.  The ground of the application was that the individual sentences and the total effective sentence and non-parole period were all manifestly excessive.  His Honour held that the sentence on count 1 was not arguably manifestly excessive.  His Honour accepted that it was reasonably arguable that the individual sentences on counts 2 and 3 were manifestly excessive having regard to the nature and gravity of the offending and the mitigating factors upon which the appellant could rely.  His Honour granted leave to appeal in respect of the sentences on counts 2 and 3.

1. The appellant elected to renew his application for leave to appeal in respect of count 1.  The application was heard by two judges, who ordered that the election application be referred to the court which was to hear the appeal on counts 2 and 3.  The court considered that, although the argument that the sentence on count 1 was manifestly excessive faced very considerable obstacles, the court hearing the appeal would be inhibited in addressing the submissions of the appellant in respect of the total effective sentence unless leave was granted in respect of count 1.

1. At the hearing of the appeal, counsel for the appellant abandoned the application for leave to appeal against the sentence imposed in respect of count 1.

1. The trafficking offences were serious.  The maximum sentence for each offence is 15 years’ imprisonment.  The appellant participated in a significant business for profit.  Nevertheless, he could rely upon mitigating factors of some significance.  The appellant was a first offender who made full admissions and pleaded guilty at the earliest opportunity.  He had a low intelligence quotient, which played a role in his offending as did his pathological gambling addiction.  The appellant’s participation in the trafficking was relatively minor.   He was described as a broker and his monetary award was minor, apparently reflecting the level of his responsibility in the trafficking enterprise.

1. The offending the subject matter of count 2 was constituted by the appellant offering 50 ecstasy tablets for sale to Bankovaki, yet the sentence imposed upon the appellant was the same as that imposed in respect of count 1, an offence which involved multiple sales of amphetamine.  In my opinion, the fact that the appellant sold the drugs the subject matter of count 2 to another dealer rather than a consumer did not mean that he was not at the bottom of the hierarchy of drug dealing.  The transaction between the appellant and Bankovaki resembled an adjustment of stock between retailers rather than a supply of drugs by a wholesaler to a retailer.  This single transaction ought not to have attracted the same penalty as that imposed upon the appellant for the quantities of drugs the subject matter of count 1.

1. The quantity of drugs the subject matter of count 3 was very small and was just for the appellant’s own use.  It was contended that the sentence of six months’ imprisonment, which was half the maxim penalty, was wholly outside the available range.  The quantity trafficked by the appellant was relatively minor in that it was within the order of the quantity drugs routinely dealt with in the Magistrates’ Courts.  An application to dispose of the charges summarily was denied by the invoking of the long standing principle that co-offenders should be dealt with before the same sentencing tribunal if possible. 

1. In my opinion, the sentences imposed on counts 2 and 3 and the cumulation of the sentence on count 2 were manifestly excessive.  The circumstances of the offences placed the crimes at the lower end of the spectrum of gravity and the personal circumstances of the appellant were significantly mitigatory.  The appellant pleaded guilty at an early stage and co-operated with the police.  He had no prior convictions.  He had a low IQ and a gambling addiction, which the sentencing judge found affected his moral culpability and ‘diminishes it somewhat’.

1. Counsel for the appellant did not gainsay the appropriateness of a term of imprisonment but contended that any term of imprisonment should be wholly or partially suspended.  I do not think it appropriate to suspend any part of the sentence having regard to the appellant’s participation for profit in a significant trading enterprise.  I would, however, impose more moderate sentences in respect of counts 2 and 3.

1. I would allow the appeal, set aside the sentence passed below and re-sentence the appellant to be imprisoned for a term of 2 years on count 1, for a term of 3 months on count 2 and for a term of 2 months on count 3.  I would order that the sentences be served concurrently, creating a total effective sentence of 2 years’ imprisonment.  I would direct that the appellant serve a period of 14 months’ imprisonment before he is to be eligible for parole.

HARPER JA:

1. I agree.

BUCHANAN JA:

1. The orders of the Court are 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 two years on count 1, for a term of three months on count 2, and for a term of two months on count 3.  The sentences are to be served concurrently.  The total effective sentence is two years' imprisonment.  The appellant is to serve a period of 14 months' imprisonment before he is to be eligible for parole.

1. (Discussion ensued)

1. It is declared that a period of 352 days, not including today, is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details are to be entered in the records of the Court.  The forfeiture and disposal and retention orders made below are confirmed. 

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