Dislakis v The Queen [2016] VSCA 297

2 Another member of the joint criminal enterprise was Glynn Peterson. His involvement was the manufacture of the methylamphetamine at a clandestine laboratory in Melton West. He was what is known as 'the cook'.

3 Peterson and Dislakis were charged together on the one indictment with trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act'). Mr Peterson was also charged on the same indictment with the offence of possession of a prescribed precursor chemical, namely pseudoephedrine, contrary to s 71D of the Act. They pleaded guilty to those charges in the County Court and after a plea hearing were sentenced together on 28 July 2016 by the same judge.

4 The applicant was sentenced to a term of imprisonment of 3 years 6 months. A non-parole period of 2 years 3 months was fixed. Pre-sentence detention of 28 days was declared.

5 On the trafficking charge Peterson was sentenced to 4 years' imprisonment. On the charge of possession of precursor chemicals he was sentenced to 6 months' imprisonment. No order for cumulation was made. His total effective sentence was thus 4 years' imprisonment. A non-parole period of 2 years 9 months was fixed. In his case pre-sentence detention of 505 days was declared.

6 The applicant now seeks leave to appeal his sentence on the following proposed ground:

The sentencing judge erred in the application of the parity principle by failing to impose a sentence on the charge of trafficking in a drug of dependence that was sufficiently disparate from the sentence imposed on the co-offender, Glynn Peterson.

7 Given the narrow nature of the proposed ground it is unnecessary to set out all of the relevant features of the offending and the personal background and circumstances of the offenders. It is not suggested that the sentencing judge overlooked any relevant factor. Rather, it is submitted that the sentencing judge did not give proper effect to the relevant parity considerations between the two offenders of which he was fully aware and which he addressed in his reasons for sentence.

8 On behalf of the applicant it is submitted that five significant relevant differences between him and Peterson ought to result in a conclusion that a difference of only 6 months in the term of imprisonment imposed engenders in the applicant a justifiable sense of grievance. The five relevant differences relied upon are:

(1) Peterson had an additional charge on the indictment so that the extent and nature of Peterson's criminality was greater.

(2) Peterson had a significant prior conviction, trafficking in methylamphetamine. The applicant had no relevant prior convictions of this kind.

(3) Peterson had many more prior convictions for a greater range of offences than the applicant.

(4) The sentencing judge assessed Peterson's prospects of rehabilitation as 'fair at best' whereas he made a more positive assessment of the applicant's prospects of rehabilitation.

(5) Totality was a significant issue in relation to the applicant. The reason the pre-sentence detention declared in his case was only 28 days was because he served a term of 11 months in prison on unrelated matters while awaiting trial for these offences. That meant that he lost the opportunity for partial concurrency. This consideration did not apply to Peterson.

9 In response, the respondent refers to the legal principles applicable in relation to the proposed ground, relying in particular upon the observation of Maxwell ACJ (as he then was) in Hilder v The Queen to the effect that where a judge has carefully considered all of the relevant sentencing considerations referable to co-offenders, a ground of parity will rarely succeed because it will be necessary for an applicant to show that, notwithstanding careful and conscientious consideration, the conclusion as to differentiation is so obviously wrong that the appellate court is constrained to conclude that the sentencing discretion has miscarried.[1]

10 In relation to the specific matters relied upon, the respondent submits:

(1) Peterson's criminality was not significantly greater because there was an additional charge. He was in possession of pseudoephedrine as part of his role as manufacturer. The sentence imposed and the total concurrency ordered reflects that. The sentencing judge concluded that the respective roles of the two offenders were relevantly similar and that conclusion was well founded.

(2)+(3) Peterson's criminal history was more extensive and more serious than the applicant's, and he had a prior conviction for trafficking. But the applicant also had relevant prior convictions which were drug related in that his drug addiction had been a significant motivating factor. Further, there were three factors concerning the applicant's history which did not apply to Peterson. They were:

• by this offending the applicant breached a suspended sentence which he was then undergoing;

• at the time of this offending he was on bail for other matters; and

• the applicant had breached a community correction order and the suspended sentence on other occasions.

The sentencing judge properly took those matters into account.

(4) Whilst the sentencing judge assessed the prospects of rehabilitation differently and concluded that the need for specific deterrence was greater in relation to Peterson, he observed that the need for specific deterrence was also 'significant' in relation to the applicant given that this offending occurred in breach of a suspended sentence and whilst on bail.

(5) The complaint related to pre-sentence detention is a complaint as to totality not parity. In any event, it is submitted that the sentencing judge was fully cognisant of the issue. The sentencing judge expressly said he would impose 'a slightly lesser sentence' than he otherwise would have as a consequence of this consideration.

11 In my opinion it is not reasonably arguable that the applicant has a genuine sense of grievance arising out of insufficient differentiation between he and Peterson. The only circumstance of real significance amongst the matters relied upon is the difference in their respective criminal histories, but the differentiation determined upon by the sentencing judge is perfectly explicable, notwithstanding that factor, because the applicant offended during the currency of a suspended sentence and whilst on bail. Overall, the submissions made on the respondent's behalf are correct, in my view.

12 I do not overlook the fact that there is also a significant difference in the age of the two offenders, notwithstanding that that is not one of the five specified differences relied upon by the applicant. At the time of the offending the applicant was 26 years of age whereas Peterson was 41. Again, the sentencing judge was fully aware of that difference and he dealt with it in his reasons. It does not lead me to conclude that the differentiation which he provided for in the sentences was not reasonably open.

[1] [2011] VSCA 192 [39].