Young v The King

[2024] VSCA 179

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0085

RHYS YOUNG	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2024
DATE OF JUDGMENT:	12 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 179
JUDGMENT APPEALED FROM:	DPP v Young [2024] VCC 197 (Judge Moglia)

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CRIMINAL LAW – Sentence – Application for extension of time – Prohibited person in possession of a firearm, trafficking in a drug of dependence, methylamphetamine, and associated offences – Guilty plea – Total effective sentence of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 4 months – Whether judge erred by finding possession of firearm incidental to trafficking methamphetamine – Whether sentence manifestly excessive – Extension of time refused.

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Counsel
Applicant:		Mr T Acutt
Respondent:		Ms K Hamill
Solicitors
Applicant:	Slink & Keating
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

Introduction

1. On 30 October 2023, the applicant, then aged 35 years,[1] pleaded guilty before a judge in the County Court to the indictable offences of being a prohibited person possessing a firearm (charge 1);[2] trafficking in a drug of dependence, methylamphetamine (charge 2);[3] and three charges of possessing a drug of dependence, Xanax, testosterone and other growth hormones (charges 3, 4 and 5).  He also pleaded guilty to the related summary charges of possessing cartridge ammunition without a licence (summary charge 2); possessing a Schedule 4 poison (summary charge 12); and dealing with the proceeds of crime (summary charge 13).

   [1]His date of birth is 23 March 1988.

   [2]Firearms Act 1996, s 5(1). The maximum sentence is 10 years’ imprisonment.

   [3]Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1). The maximum penalty is 15 years’ imprisonment.

2. Following a plea in mitigation, on 23 December 2023 the judge sentenced the applicant to three years and nine months’ imprisonment, with a non-parole period of two years and four months, in accordance with the following table:

Charge	Offence			Sentence	Cumulation
1	Prohibited person in possession of a firearm			2 years and 9 months	Base
2	Trafficking in a drug of dependence			2 years	12 months
3	Possessing a drug of dependence			3 months	—
4	Possessing a drug of dependence			3 months	—
5	Possessing a drug of dependence			3 months	—
Related summary offences
2		Possessing cartridge ammunition		Convicted and discharged
12		Possessing a Schedule 4 poison		Convicted and discharged
13		Dealing with proceeds of crime		5 months		—
Total effective sentence			3 years and 9 months’ imprisonment
Non-parole period			2 years and 4 months
Pre-sentence detention			471 days
Section 6AAA declaration			5 years and 6 months
Other orders			Forfeiture and disposal orders

1. The applicant now wishes to challenge his sentence.  He needs an extension of time within which to do so.[4]  If granted an extension of time, he seeks leave to appeal against his sentence on two grounds as follows:

   1.The sentencing Judge erred by finding that the possession of the firearm was ‘incidental’ to the criminal purpose of trafficking methamphetamine.

   2.The individual sentence imposed on Charge 1 and the order for cumulation on Charge 2 are manifestly excessive.

   [4]See Criminal Procedure Act 2009, s 313.

2. For the reasons that follow, we consider that neither ground has substance.  It would therefore be futile to grant an extension of time.

The offending

1. It is necessary to summarise the main features of the applicant’s offending.

2. On Wednesday 7 September 2022, police arrested the applicant at a petrol station in Frankston while he was fuelling a Ford Ranger that he had been driving.

3. During a search of the vehicle, police found and seized the following items: an Apple iPhone; 13.6 grams of methylamphetamine, Google mobile phone and assorted keys in a Louis Vuitton bag (charge 2); one cartridge of .38 ammunition (summary charge 2); $3790 in Australian currency (summary charge 13); a bag containing $3420 in Australian currency (summary charge 13); a revolver holster; and a balaclava, bolt cutters and gloves.

4. At the same time, police conducted searches of the applicant’s factory and home.  The following items were located and seized at his factory: a .357 Smith & Wesson Magnum revolver (charge 1) and 264 rounds of .357 calibre Magnum ammunition (summary charge 2) in a red toolbox; 18 vials of assorted steroids including Cypionate, Dianabol and Drostanolone (charge 5), Human Growth Hormone (summary charge 12), Epithalon and Testosterone; a green case containing 41 rounds of .320 calibre ammunition (summary charge 2); 13.8 grams of methylamphetamine in a resealable bag (charge 2); blue latex gloves containing 44 cartridges of 9mm Luger ammunition (summary charge 2); and a CCTV box.

5. Police located and seized the following items at the applicant’s home: Xanax tablets (containing mixture of approximately 200 full, crushed and half tablets) (charge 3); six vials of Testosterone (charge 4); 16 vials of Human Growth Hormone (summary charge 12); $2705 in Australian currency (summary charge 13); and an Optus mobile telephone.

6. The applicant provided a ‘no comment’ interview and was remanded in custody.

7. Having previously been sentenced to a term of imprisonment, the applicant was a prohibited person under s 3(1) of the Firearms Act 1996.  The total amount of methylamphetamine seized was 27.4 grams.

Reasons for sentence

1. In his sentencing reasons, the judge acknowledged that the plea of guilty: was ‘relatively early’; facilitated the course of justice; was an admission of responsibility; and attracted greater weight because it was entered during the pandemic.

2. With respect to the applicant’s personal circumstances, the judge noted his ‘unstable’ childhood.  His father abused drugs and alcohol, and his stepfather denigrated and emotionally abused him.  At age 12 or 13 he was physically mistreated by a close family member which had a lasting impact on him.  The applicant left school at 15 and entered the workforce. 

3. The judge discussed the applicant’s prior convictions and his daily ‘ice’ habit.  It seems the applicant attempted to appear healthy and fit by taking testosterone and growth hormones ‘and this provided a context of [his] offending in this case’.  

4. Further, the judge referred to a report by a psychologist, Aaron Cunningham, who stated that the applicant’s upbringing undoubtedly affected his formation, contributing to his addictive behaviours and low self-esteem, starting in his teens.  Mr Cunningham was of the view that the constant denigration by his stepfather meant that the applicant’s self worth was contingent upon acceptance from others.  Significantly, it also contributed to his motivation to achieve.  The normalisation of drug use from his father meant that when life became stressful the applicant coped by turning to ice. Mr Cunningham regarded the applicant’s risk of offending as high unless he addressed his drug problem.

5. The judge observed that it was clear that the applicant enjoys a strong network of support from those who are aware of his drug use and his need for ongoing rehabilitation following his release, and accepted that the applicant had ‘a degree of insight’.  He said that the applicant’s ‘focus on the future is positive’, and, in all the circumstances, the judge found his prospects of rehabilitation ‘to be moderately good’.

The applicant’s prior convictions

1. With respect to the applicant’s prior convictions, the judge said:

   Your criminal history is relevant and serious.  In determining the appropriate sentence in this case, I must take into account your progress on previous orders and while you are not to be punished again for your past offending I find that it requires that I place greater weight on deterring you from future like-offending and the need to protect the community. 

2. In 2013, the applicant was imprisoned for 12 months on charges which included: trafficking amphetamine; unlawful assault; dealing with property suspected of being the proceeds of crime; burglary; theft; receiving stolen goods; unauthorised dealing with explosives; and other charges.  More significantly, in 2014 the applicant was dealt with for kidnapping; false imprisonment; theft; and other charges, and ultimately was sentenced to a total effective sentence of seven years and six months’ imprisonment, with a non-parole period of five years and three months.[5]   

Ground 1:  Did the judge err by finding that the possession of the firearm was ‘incidental’ to the criminal purpose of trafficking methamphetamine?

[5]See Young and Ors v The Queen [2015] VSCA 265.

1. In his sentencing reasons, the judge observed:[6]

   The possession of firearms by prohibited persons is a serious offence that must attract stern consequences.  The danger such weapons can pose to others is considerable.  Your possession in circumstances where you were also trafficking methamphetamine is more serious even if having the gun was only incidental to the trafficking and not directly related.  I find your culpability for this offence to be high.

   [6]Emphasis added.

2. Counsel for the applicant submitted that a finding that the possession of a firearm was for a sinister or criminal purpose is a finding of aggravating circumstances and must only be made if the sentencing judge is satisfied beyond reasonable doubt.[7] In the absence of any positive evidence that the applicant has used or intended to use the firearm, the sentencing judge could only be satisfied of the aggravating circumstance if it was the only reasonable inference that could be drawn from the surrounding circumstances.  Counsel submitted that the judge fell into error in finding the aggravating circumstance was present when there was no positive evidence before him that the applicant had been, or planned to be, involved in criminal or sinister activity involving the use of the firearm.  It was not reasonably open to the sentencing judge to find beyond reasonable doubt that the only reasonable inference open was that the applicant’s possession of the firearm was connected to the criminal purpose of trafficking methamphetamine or any other criminal purpose.  As a result, the sentencing discretion had miscarried.

   [7]Counsel cited Sultan v The King [2022] VSCA 205.

3. We would reject these submissions. 

4. In our view, the offence of being a prohibited person in possession of a firearm is one where general deterrence assumes a deal of importance.  It is impossible to ignore the ubiquity of illegal firearms in the community and the very great harm that they cause. 

5. Moreover, the applicant is no stranger to illegal firearms.  The applicant was the ringleader of the kidnapping offence for which he was imprisoned in 2015.  In the course of the kidnapping, the victim was taken at gunpoint.  And significantly, the kidnapping itself appears to have been motivated by a dispute that the applicant and others had with a small-time drug dealer relating to firearms.  The applicant had paid the drug dealer $13,000 for two semi-automatic pistols which he failed to deliver, the applicant suspecting he had simply stolen the money.  

6. There are many cases where the possession of a firearm in close connection with quantities of drugs and drug paraphernalia permitted the inference that the firearm was an accoutrement of the crime of drug trafficking.  Dealing illicit drugs at street level is, as Gleeson CJ observed, a ‘dangerous activity’, permitting the inference that possessing firearms would be appropriate to the business of a street level drug dealer.[8]  As was the case in Acciarito,[9] we consider that the circumstances of the present case ‘support a conclusion that the judge was correct to sentence the applicant for a more serious instance of the firearm offence because it was associated, albeit incidentally, with the commission of other criminal offending’, so much fitting what Redlich JA described in Berichon[10] as the more serious form of the firearm offence.

   [8]R v Sultana (1994) 74 A Crim R 27, 29–30.

   [9]Acciarito v The Queen [2019] VSCA 264, [52] (Niall and Ashley JJA).

   [10]Berichon v The Queen (2013) 40 VR 490, 496 [26].

7. No error has been demonstrated.  The first ground must fail.

Ground 2:  A manifestly excessive sentence?

1. Under cover of the second ground, counsel for the applicant submitted that the sentence imposed on charge 1 (prohibited person in possession of a firearm), and the cumulation ordered with respect to the sentence on charge 2 (trafficking methylamphetamine), demonstrate that the sentencing judge allowed considerations relevant to the applicant’s criminal history — and the consequent need for specific deterrence — to swamp all other sentencing considerations, including the applicant’s prospects of rehabilitation; his unsophisticated trafficking in relatively small amounts of illicit drugs; and the utilitarian value of his guilty plea.  Whilst the applicant’s prior conduct was a highly relevant sentencing fact, counsel submitted, he was not to be again punished for his prior offending.  When placed against the background of what was said to be the erroneous finding that the possession of the firearm was for a criminal purpose, the weight given to specific deterrence and punishment takes the individual sentence on charge 1 outside the sound exercise of the sentencing discretion.  And while counsel acknowledged that the sentencing judge did state that the sentence would reflect the principle of totality, counsel submitted that the order for cumulation of half of the sentence on charge 2 is manifestly excessive when regard is had to the objective gravity of the offending and the need to moderate the weight of the sentence to give due regard to totality.

2. We do not accept these submissions.  In our view, the individual sentences on charges 1 and 2, and the degree of cumulation ordered, were well within the available range.

3. The approach to a ground which contends that a sentence is manifestly excessive was discussed in Leimonitis:[11]

   As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error.  Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[12] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust.  The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[13]  A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[14]  But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence.  Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[15]

   [11]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).

   [12]R v Kenny (Unreported, 2 October 1978, Vic, CCA);  Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].

   [13]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).

   [14]Ibid.

   [15]        Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].

4. As we have indicated, we agree with the judge that the ‘possession of firearms by prohibited persons is a serious offence that must attract stern consequences’.  We also agree with what the judge said in relation to the trafficking offence:

   I also find your culpability for the trafficking to be high.  While the quantity of the drug was not very high, and I do not find that your trafficking was organised or sophisticated, you have a prior conviction for it and served time in prison for that offence in 2014.

   I do not however elevate the seriousness of your trafficking because of the firearm.  You are not alleged to have used it to engage in the trafficking and you are not to be punished twice for the fact that both offences arise in the same circumstances.

   The need to deter others from such offending is great, partly due to methamphetamine trafficking being prevalent.  You also need to be deterred specifically from repeating such conduct given your history.  The term of imprisonment is also required to denounce your conduct and to impose just punishment in keeping with current sentencing practices.

5. We are far from persuaded that the individual sentences, and the impugned order for cumulation, are manifestly too great.  Ground 2 must accordingly fail.

Conclusion

1. Since neither proposed ground of appeal has substance, it would be pointless to grant the application for an extension of time.  It will be refused.

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