Al-Dimachki v The Queen [2021] VSCA 98

1 On 17 October 2019, after pleas of guilty, the applicant and his co-accused, Ashley Atkinson, were sentenced by a judge of the County Court to be imprisoned on a number of drug-related and other offences. The applicant and Ms Atkinson were living together and in a relationship at the time of the offences. However, with limited exceptions, the offending with which each was charged was different. The applicant was sentenced to be imprisoned for 4 years and 8 months with a non-parole period of 2 years and 10 months as follows:

Possession of a drug of dependence (methylamphetamine)

Possession of a drug of dependence (testosterone, oxycodone, methylamphetamine and MDMA)

Trafficking in a drug of dependence - commercial quantity (1,4-butanediol)

Dealing with property suspected to be proceeds of crime

Section 6AAA Statement

Forfeiture and disposal orders; sentenced as a serious drug offender in respect of charge 7.

2 Ms Atkinson was sentenced to be imprisoned for a term of 5 years and 6 months with a non-parole period of 3 years and 2 months, as follows:

Possession of a drug of dependence (testosterone, oxycodone, cocaine)

Trafficking in a drug of dependence - commercial quantity (1,4-butanediol, methylamphetamine)

Dealing with property suspected to be proceeds of crime

Section 6AAA Statement

3 It can be seen that the base sentence in each case was imposed for a charge of trafficking in a drug of dependence. In both cases, a commercial quantity of 1,4-butanediol was alleged. The quantity of 1,4-butanediol in each case was approximately 98 kilograms, nearly 50 times the commercial quantity threshold. In the case of Ms Atkinson, the charge also included trafficking a commercial quantity of methylamphetamine, in the amount of 380.8 grams, 327 grams of which were pure methylamphetamine. A commercial quantity of mixed purity methylamphetamine at the relevant time was 250 grams, and a commercial quantity of pure methylamphetamine was 50 grams.

4 The applicant seeks leave to appeal against his sentence on the following three grounds:

Ground 1: the Learned Sentencing Judge erred in refusing to take into account evidence of unexplained transfers of funds into the co-accused's bank account between November 2015 and August 2017.

Ground 2: the Learned Sentencing Judge erred in the application of the parity principle.

PARTICULARS:

(a) there was insufficient disparity between the applicant's sentence for trafficking in a commercial quantity of a drug of dependence (charge 7), and the co-accused's sentence for the same offence (charge 6);

(b) there was insufficient disparity between the applicant's total effective sentence and orders for cumulation, and the co-accused's total effective sentence and orders for cumulation.

Ground 3: the learned sentencing judge erred in the application of the totality principle.

PARTICULARS:

(a) the individual sentences on charge 7 should have been further moderated; and

(b) the order for cumulation on charge 2 should have been moderated; and

(c) the total effective (sic) should have been further moderated;

to ensure that the applicant's sentence did not exceed a just and appropriate measure of the total criminality involved.

5 The principal offending arose out of an enterprise in trafficking 1,4-butanediol. The two key locations were a property in Niddrie and a storage facility in Maribyrnong where two storage units were leased.

6 On 26 June 2017, a male identifying himself as 'David' phoned Hotco in Cheltenham and purchased a wax immersion heater. 'David' gave his phone number and a credit card number over the phone for payment. Later that day an unknown person picked up the wax immersion heater. The credit card number given by 'David' was stolen at the time of purchase (charge 1 - obtain property by deception).

7 On 26 July 2017, police observed Ms Atkinson driving a Grey Honda Accord on Mount Alexander Road with the applicant in the passenger seat. After they parked the vehicle, Ms Atkinson was searched and police seized $600 in cash and three mobile phones. The applicant was searched and police seized a driver's licence in the name of Teina Howden (charge 2 - handling stolen goods), a mobile phone (summary charge 13 - dealing with suspected proceeds of crime), and a plastic zip lock bag containing 3.7 grams of methylamphetamine (charge 3 - possess drug of dependence).

8 Police also searched the vehicle and found $2,000 cash, a driver's licence in the name of Vikki Giannopoulos, and a Kennards Self Storage folder with a receipt dated 22 July 2017 for Kennards Self Storage in Maribyrnong. These matters formed the basis for charge 10 against Ms Atkinson (handling stolen goods), and summary charge 12 (dealing with suspected proceeds of crime)

9 Ms Atkinson had been disqualified from driving for two years from 4 August 2015. This was the basis for summary charge 21 in her case.

10 Later that day, police executed a search warrant at the property at Niddrie where the applicant and Ms Atkinson lived. They found a number of items including 1,4-butanediol (charge 7 - traffic commercial quantity of drug of dependence; charge 6 in the case of Ms Atkinson), methylamphetamine (also charge 6 in the case of Ms Atkinson), MDMA, oxycodone, testosterone (charge 5 - possess drugs of dependence, charge 4 in the case of Ms Atkinson), scales, and two other driver licences (summary charge 13 - dealing with suspected proceeds of crime). Ms Atkinson was also charged with trafficking in MDMA and dealing with suspected proceeds of crime as a result of these discoveries (charge 8, summary charge 12).

11 Police ascertained that the applicant and Ms Atkinson had each attended Kennards Self Storage in Maribyrnong and that, using false identification documents, Ms Atkinson had leased storage unit 1058 in the name 'Vikki Giannopoulos' and the applicant had leased storage unit A31 in the name 'John Saluni.'

12 On the following day, 27 July 2017, police executed a search warrant at storage unit 1058 and seized a number of items including drums and other containers of 1,4-butanediol, scales, and a Lockwood safe that was bolted to the floor. Further enquiries revealed that Ms Atkinson and the applicant had bought the safe from Bunnings.

13 On the same day, police executed a search warrant at storage unit A31 and seized a number of items including a Hotco wax immersion heater (the property the subject of charge 1), tubing, containers, pumps and a drum containing 42.123 kilograms of 1,4-butanediol (charge 7 - traffic commercial quantity of drug of dependence).

14 Also found in the storage units were various other items including credit cards, identity documents, bags, watches and cameras (charge 12 - negligently deal with proceeds of crime).

15 These matters also formed the basis for various charges against Ms Atkinson.

16 On 31 July 2017, police opened the Lockwood safe and found items including $66,115 cash and zip lock bags containing methylamphetamine, MDMA tablets, and a small amount of cocaine. These matters formed the basis for further charges, against Ms Atkinson alone.

17 CCTV footage from Kennards Storage Facility showed that the applicant and Ms Atkinson, together with a third co-accused, Aaron Marinau, had attended the storage facility. They had loaded and unloaded items including drums of 1,4-butanediol. The applicant had always (or nearly always) attended in the company of Ms Atkinson, but she had also gone there without him.

18 The applicant and Ms Atkinson were arrested on 26 July 2017 and made 'no comment' records of interview. They ultimately pleaded guilty to the charges in question.

19 After his arrest and remand in custody, the applicant also pleaded guilty and was sentenced on separate charges of trafficking a drug of dependence in a commercial quantity (1,4-butanediol) and possessing a drug of dependence (methylaphemtamine). These charges related to offending on 14 October 2014. On 23 April 2018, he was sentenced to a total effective term of 20 months' imprisonment, with a non-parole period of 12 months.[1] His convictions for these offences required the applicant to be sentenced, on the present charges, as a serious drug offender pursuant to s 6B(2) of the Sentencing Act 1991.

20 At the joint plea hearing, the prosecutor filed a summary of opening. However, following discussions with counsel for Ms Atkinson, the prosecutor withdrew paragraphs 31-33 of that summary. In those paragraphs, it was stated that a review of bank statements for Ms Atkinson's Westpac accounts revealed that between 9 November 2015 and 25 August 2017 she held two accounts, to which a total amount of $252,506.90 had been credited, most of which had been withdrawn. The only known amounts credited into the accounts were fortnightly Centrelink payments of approximately $800. Large quantities of up to $10,000 were regularly transferred or deposited via automatic teller machine into the account and then withdrawn again within days. The summary stated that these large transactions, despite Ms Atkinson being unemployed, were 'consistent with high end drug trafficking'.

21 At the plea hearing, counsel for the applicant sought to rely on the deleted paragraphs, and the bank statements in question which were among the depositional material, in support of an argument that Ms Atkinson had the more senior role in the drug trafficking enterprise conducted by the couple. The sentencing judge declined to take this matter into account, on the basis that the paragraphs in question had been deleted from the summary.[2]

22 By the first proposed ground of appeal, the applicant contends that the judge erred in refusing to take into account evidence of the transfers of funds into Ms Atkinson's bank account. It was submitted that, whatever agreement the prosecutor had come to with Ms Atkinson, the applicant was not a party to it and he was entitled to point to any evidence in order to demonstrate that his role was subordinate to that of Ms Atkinson.

23 It was submitted that the sentencing judge had addressed the question of the respective roles of the parties and found only that Ms Atkinson's culpability was 'somewhat greater' because she had pleaded guilty to trafficking charges in relation to multiple drugs.[3] That finding, it was submitted, did not extend to the question of her control over the part of the enterprise in which the applicant participated, namely, the 1,4-butanediol trafficking. The applicant submitted that the sentencing judge should have found that Ms Atkinson had control over that part of the enterprise and was its directing mind and will. Instead, it was said that the judge had erred by failing to take account of a relevant fact. It was said that, together with evidence as to the pattern of attendances at the storage facility and as to Ms Atkinson disbursing cash from her wallet in that context, the material showed her to have the leading role in the offending.

24 The respondent submitted that the offending to which both parties pleaded guilty occurred on 26 and 27 July 2017. The analysis of the bank accounts extended over a much longer period. There were other possible explanations for the funds deposited and withdrawn from the accounts. It could not be proven to the requisite standard that the deposits were related to criminal activity, much less the couple's drug trafficking enterprise. The respondent submitted that the judge had accepted that the applicant had a subordinate role to Ms Atkinson and was not involved in the business of trafficking other than in respect of the 1,4-butanediol.

25 In our view, the judge was strictly correct to say that she could not take account of paragraphs of the prosecution's plea opening which the prosecutor had retracted. However, that did not foreclose the applicant from seeking to establish the withdrawn statements for the purposes of his plea. He was entitled to seek to do that in reliance on the depositional material in the ordinary way. There was debate at the hearing in this Court as to whether counsel for the applicant had sought to do so. In our opinion, he did raise the point and the bank statements were open to be relied upon in his plea.

26 Even so, to the extent that the judge erred in ruling to the contrary, nothing turns on the point. The trafficking in 1,4-butanediol was alleged to have occurred over two days, whereas the bank statements covered a period of nearly two years. Moreover, even if Ms Atkinson had banked the amounts in question as proceeds of trafficking, this did not show anything about the relative position of the parties, or that the applicant had not banked or received proceeds of the same trafficking himself. The utility of the evidence is further denied by the fact that Ms Atkinson was charged with trafficking other drugs in her own right, and this may have explained the deposits. If she banked the proceeds of that trafficking, that would not reveal anything about the distribution of proceeds of the 1,4-butanediol enterprise.

27 For these reasons, the evidence of Ms Atkinson's bank transactions did not assist in identifying the respective roles of the applicant and Ms Atkinson in the trafficking of 1,4-butanediol with which they were both charged. Leave to argue this ground is granted on the basis that the banking records were able to be relied on at the plea, but the ground is rejected.

28 Under the second proposed ground, the applicant submitted that there was insufficient disparity between the sentences each offender received for the charges of trafficking in a commercial quantity of a drug of dependence. Ms Atkinson's charge had been 'rolled up' to include a separate commercial quantity of methylamphetamine, in an amount which, if charged separately, would have been expected to attract a substantial custodial sentence in its own right. She had also pleaded guilty to trafficking an amount of MDMA which was very close to a commercial quantity. It followed that she was operating a large scale, multi-substance trafficking business. In the circumstances, it was not reasonably open to impose a sentence only 12 months longer than that of the applicant on the 1,4‑butanediol charges, and 16 months longer on the whole 'trafficking enterprise'.

29 The applicant submitted that Ms Atkinson's sentence should have been informed by the evidence demonstrating that she had the leading role in the enterprise. She should have received a significant degree of 'latent' cumulation for the separate trafficking of a considerable quantity of methylamphetamine. In addition, the totality principle indicated that the applicant's sentence should have been moderated because, while in custody awaiting sentence, he had served a sentence for other offences, which had not been declared as pre-sentence detention.

30 In respect of cumulation, the applicant noted that, apart from the cumulation of 2 months for the MDMA trafficking charge and 2 months for knowingly dealing with the cash proceeds of the trafficking, none of the other sentences imposed on Ms Atkinson were cumulated. In particular, no order was made cumulating any part of her sentences for handling stolen goods and negligently dealing in the proceeds of crime. In comparison, the shorter sentences imposed on the applicant for the equivalent offences of handling stolen goods (relating only to a driver's licence) and negligently dealing with the proceeds of crime, were the subject of cumulation. This was despite the fact that it was said that the applicant had the stronger claim to moderation of his total sentence, due to the totality considerations referred to above.

31 The respondent submitted that the sentences imposed reflected the differences in culpability and personal circumstances of the parties. The applicant had failed to appear while on bail for a separate matter at the time of the offence, whereas Ms Atkinson was subject to a community correction order at the time of the offence. The judge assessed the applicant's prospects of rehabilitation as reasonable, whereas Ms Atkinson's prospects were assessed as good.[4] Ms Atkinson had had significant social disadvantage in a traumatic upbringing and been the victim of domestic violence in the past which led to her making poor decisions in relationships and went some way to explaining the current offences.

32 Ms Atkinson's prior criminal history related largely to dishonesty offences, and involved only two prior drug matters. In 2013, she had received a without conviction adjourned undertaking in relation to a charge of possessing GHB and, in 2015, she had received a community correction order of 18 months in relation to possessing methylamphetamine. In contrast, the applicant had a significant and different criminal history. He had seven appearances (not including breach proceedings) for drug-related charges.‑ He had been sentenced to imprisonment for drug offences including trafficking in a drug of dependence. As mentioned, after his arrest and remand in custody, he had pleaded guilty and been sentenced on separate drug-related charges, including a charge of trafficking 1,4-butanediol in a commercial quantity, and so fell to be sentenced as a serious drug offender.[5]

33 The respondent submitted that, with a highly relevant prior criminal history, the applicant had involved himself in a further trafficking enterprise in relation to 1,4-butanediol while on bail for the same charge. The applicant was an active and important member of the enterprise. He lived with Ms Atkinson and was arrested while travelling in a car with her. One of the two storage units used in the commission of the offences was in his name while the other was in the name of Ms Atkinson. They had purchased equipment together and independently of each other. CCTV footage showed the applicant attending the storage unit with Ms Atkinson, and on one occasion, alone. It was said to be reasonably open to the judge to differentiate between the applicant and Ms Atkinson in the way in which she did.

34 The first issue raised by the parity ground is whether it was reasonably open to the sentencing judge to arrive at a sentencing differential of 12 months between the applicant and Ms Atkinson in relation to the trafficking in 1,4-butanediol. In this context, it is necessary to take care to identify what the relevant comparison involves. As Maxwell P and McLeish JA said in Roe v The Queen:[6]

Appellate intervention in the case of disparity between the subject sentence and that imposed on a co-offender is a reflection of the notion of equal justice. Disparity of this kind may justify intervention even though the sentence, taken by itself, and having regard to current sentencing practice more generally, is not manifestly excessive. The focus of the ground is on the different treatment of co-offenders in like circumstances, or the similar treatment of co-offenders in unlike circumstances.[7]

35 The disparity ground is approached with restraint, bearing in mind that the matter is one for discretionary judgment as part of the overall sentencing process.[8]

36 In the present case, these considerations are immediately relevant in two ways. First, as the applicant submitted, when comparing the sentences imposed in respect of the trafficking in 1,4-butanediol, account must be taken of the fact that Ms Atkinson was sentenced on a 'rolled up' charge that also included trafficking in a commercial quantity of methylamphetamine. Her sentence can be taken to have been higher than it would otherwise have been as a result.

37 Secondly, and contrary to the applicant's submissions, disparity cannot be shown by comparing the total sentence imposed on each of the offenders in respect of what was called the 'trafficking enterprise'. The applicant was not charged with trafficking in methylamphetamine or MDMA. The only 'enterprise' in issue for present purposes was the trafficking in 1,4-butanediol.

38 Turning then to that trafficking, in our view a differential of 12 months was reasonably open to the judge. Although Ms Atkinson was sentenced on a 'rolled up' charge and her overall moral culpability was found to be higher than that of the applicant as a result of the greater range of offending on her part, the applicant had a significantly more serious criminal record. He had served a term of imprisonment for trafficking 1,4-butanediol, for which charge he was on bail when the present offence was committed. Ms Atkinson was serving a community correction order at the time of the offences, imposed for possession of methylamphetamine. The judge considered that Ms Atkinson had good prospects of rehabilitation but regarded the applicant's prospects as guarded. While both offenders had difficult childhoods, for different reasons, Ms Atkinson had a history of abusive relationships which gave rise to poor decision-making and went some way to explaining her offending. Less significantly, the applicant was 32 years of age whereas Ms Atkinson was 26.

39 It must be borne in mind that the sentences imposed on each offender for the trafficking offences were modest, if not lenient. In the circumstances, a difference of 12 months is more significant than it would have been had the sentences been longer. The judge was rightly careful to make sure that, in seeking parity, she did not impose a manifestly inadequate sentence on the applicant.

40 Taking all these matters together, we consider that the difference of 12 months between the two base sentences was reasonably open.

41 In respect of cumulation, it was submitted that it was not reasonably open to cumulate 4 months on the handling and negligently dealing with proceeds charges, in the case of the applicant, but nothing in the case of Ms Atkinson, even though she was sentenced to higher terms on those charges than the applicant. Taken in isolation, this might suggest inconsistency of treatment. However, the question of cumulation arises at least partly in the context of ensuring that the total effective sentence is appropriate. In the present case, because the offenders were subject to such different sets of charges, the question of totality raised quite different considerations in respect of each of them. It is therefore not helpful to confine attention to the cumulation ordered in respect of select charges. This aspect of the case is only usefully addressed by looking at the total effective sentences imposed on each offender.

42 When that is done, we are satisfied that the difference of 10 months between the total effective sentences was reasonably open. As we have said, these sentences were low in the range of available sentences. Ms Atkinson's criminal conduct was more wide-ranging and her moral culpability correspondingly greater, but she had personal factors, including future prospects, working in her favour more than the applicant did, and his criminal antecedents were markedly more serious (including having previously committed the same offence, with the same drug of dependence). We take into account in this context as well the fact that the applicant spent 20 months of his time on remand serving another sentence for trafficking in 1,4-butanediol. As discussed under the next proposed ground, that called for some moderation in his sentence. Even so, we are satisfied that the difference between the total effective sentences was reasonably open.

43 The applicant submitted in respect of the third proposed ground of appeal that the totality principle had been misapplied in three ways. Firstly, the order for cumulation of the whole of the sentence of 2 months' imprisonment on the charge of possessing a stolen driver's licence (charge 2) was said to be unjustified. The handling of the driver's licence, of minimal inherent value, was done in the facilitation of other offences and was a relatively less serious example of handling stolen goods. Ms Atkinson's corresponding sentence, although longer and encompassing property stolen from a range of victims, was ordered to be served concurrently.

44 Secondly, it was submitted that the judge had failed to moderate the applicant's sentence sufficiently to allow for the fact that he had been undergoing sentence on another charge for the whole of the time since his arrest. The judge declared only 87 of the 812 days in question as pre-sentence detention under s 18 of the Sentencing Act. The result was said to be arbitrary disparity, in a case where the prosecution had not invoked the serious offender provisions against Ms Atkinson but instead 'rolled up' two commercial quantity offences into a single charge. In all the circumstances, it was said that the applicant was entitled to some moderation of his sentence, in particular given that for 8 months leading up to the expiration of his earlier sentence, he had been eligible for parole but had instead served out the full sentence.

45 In the applicant's written submissions, it was submitted that the totality principle could have been applied in either of two ways, either by declaring some of the time for which the applicant had been undergoing sentence to be pre-sentence detention under s 18 of the Sentencing Act (as was said to be authorised by this Court in Younger v The Queen[9]), or by moderating the head sentence. The former submission was withdrawn in light of the intervening decision of this Court in Nov v The Queen.[10]

46 Thirdly, it was said that the total effective sentence should have been moderated for the above reasons.

47 The respondent submitted that it was relevant that s 6E of the Sentencing Act required any term of imprisonment imposed to be served cumulatively on any uncompleted sentence imposed on the applicant. Although the earlier sentence had already been completed, this was said to be a relevant consideration when applying the principle of totality. The respondent submitted that the difference in the orders for cumulation reflected the application of the totality principle. Specific deterrence and community protection were significant sentencing considerations and a higher sentence would have been expected in relation to the applicant but for the principle of totality.

48 To some extent, the submissions made under this ground intersect with those regarding parity. We shall seek to avoid repeating what has already been said in that context.

49 As framed, this ground asserts error in the extent to which one order for cumulation, one sentence and the total effective sentence were moderated. It was clarified in oral argument that the argument was that the relevant dispositions were not reasonably open when regard is had to the principle of totality. So expressed, the argument has a strong resemblance to the manifest excess ground. The applicant must therefore show that the dispositions were outside the range properly available to the sentencing judge.

50 In our opinion, the argument must fail. In respect of the full cumulation of the charge of handling the stolen driver's licence, this was a matter of degree. While related to the other charges, the handling charge represented separate offending. The sentence was 2 months. We find it impossible to say that the only sentence of that duration that was reasonably open was one served at least partly concurrently.

51 The question of the time served in prison is more difficult. For the reasons we have given, being a matter going to totality, this is properly evaluated by reference to the total effective sentence rather than any individual sentence, including the base sentence for trafficking. Further, given that it cannot be known what degree of moderation the sentencing judge allowed by virtue of the prior sentence, the real question is whether the total effective sentence was reasonably open, taking that issue into account.

52 It was not disputed before us that the principle of totality may operate to require the moderation of a sentence on account of the offender having already served another sentence. That reflects the correct approach. It is consistent with the principle in R v Renzella,[11] by which pre-sentence detention not open to be declared by s 18 of the Sentencing Act must nonetheless be taken into account.[12] The principal purpose of doing so is to avoid double punishment.[13] The judge indicated that she had moderated the sentence on this basis.[14]

53 Such moderation had the same effect as would have been achieved by ordering a degree of concurrence if sentence had been imposed on all charges (including those for which the applicant was sentenced on 23 April 2018 and had completed his sentence) on the same occasion, rather than separately.[15] In that scenario, it would have been permissible to order a degree of concurrence even though the applicant fell to be sentenced as a serious drug offender by virtue of s 6B(2) of the Sentencing Act, meaning that it was to be presumed that the sentences would be cumulative: s 6E.[16] It would have been reasonably open to order a modest, or a large, period of cumulation.

54 Equally, that effective result was open in the present circumstance, in which the applicant was separately sentenced on the later charges.

55 In our view, allowing for a modest period by way of totality to reflect the fact that a sentence had been wholly served while on remand, the total effective sentence was reasonably open to the sentencing judge. The overall sentence remained, as we have now said more than once, at the lower end of the range available to the judge. The applicant has therefore not shown that the judge misapplied the totality principle in the manner alleged.

56 We will grant leave to appeal on grounds 2 and 3 as well, on the basis that the arguments as to parity and totality were open, but the appeal must be dismissed.

[1] DPP v Al-Dimachki [2018] VCC 522.

[2] DPP v Al-Dimachki [2019] VCC 1708 [84] ('Sentencing Remarks').

[4] See Sentencing Remarks [99] and [119].

[6] [2021] VSCA 54.

[9] [2017] VSCA 199, [68]-[70] (Redlich and McLeish JJA and Croucher JA).

[10] [2020] VSCA 11, [13]-[30] (Maxwell P and Whelan JA).

[11] [1997] 2 VR 88, 96-7 (Winneke P, Charles and Callaway JJA).

[12] Similarly, totality may have a role to play irrespective of questions of pre-sentence detention where a previous sentence has already been served, at least where (as here) the offences are connected in time or nature: Sayer v The Queen [2018] VSCA 177, [67]-[78] (Whelan and McLeish JJA).

[13] Sahhitanandan v The Queen [2019] VSCA 115, [35] (Priest, McLeish and Weinberg JJA).

[14] Sentencing Remarks [44], [127].

[15] See [19] above.

[16] As to the relationship between s 6E and the principle of totality, see Zhao v The Queen [2018] VSCA 267, [91]-[94] (McLeish, Niall and Weinberg JJA) and the cases there cited.