Milk v The Queen [2015] VSCA 237

1 For the reasons given by Priest JA, which I have had the benefit of reading in draft, I too would refuse leave to appeal.

2 Sarah Milk, the applicant, was, for four years or so, in the business of trafficking illicit drugs, principally methylamphetamine.

3 Between March 2010 and 30 June 2014, her practice was to purchase 'speed' (amphetamine) and 'ice' (methylamphetamine) and to sell it to people she knew. She trafficked for substantial profit, although her exact gains are difficult to calculate.

4 Police executed a search warrant on her Gisborne premises on 30 June 2014. Incriminating material was found, and the applicant later made admissions in a record of interview.

5 On 4 May 2015, the applicant - who is now aged 47 years - pleaded guilty in the County Court to three counts of trafficking a drug of dependence;[1] two counts of possessing a drug of dependence;[2] one count of handling stolen goods;[3] and one summary charge of dealing with the proceeds of crime.[4]

6 Following a plea, on 8 May 2015 the applicant was sentenced to a total effective sentence of five years and one month's imprisonment, with a non-parole period of three years and six months, according to the following table:

Trafficking in a drug of dependence (methylamphetamine)

Possessing a drug of dependence (Alprazolam - Xanax)

Dealing with property suspected of being proceeds of crime

7 The applicant sought leave to appeal against sentence on the following grounds:

1. The individual sentences imposed on charges 1, 2, 3 & 6, the orders for cumulation, the total effective sentence and the non-parole period were manifestly excessive.
2. The Sentencing Judge erred by not treating as a mitigating feature the fact that the applicant was the victim of a serious home invasion that was a direct result of her trafficking activities.
3. The Sentencing Judge erred by finding that in relation to charge 1, the applicant's trafficking involved '70 transactions a week over four and a half years represents something like 16,000 odd transactions'.

8 In my opinion, for the reasons that follow, the application should be dismissed.

9 It is necessary to say a little more about the applicant's offending.

10 On 30 June 2014, police executed a search warrant at the applicant's property in Gisborne. When asked if she was in possession of any drugs, the applicant pointed out a small bag of amphetamine in a chest of drawers in her bedroom. She was then arrested. During the police search, white powder, packaged in a variety of different sized bags and containers and in varying weights, was located throughout the house. The powder's total weight was 18.1 grams, made up of 12.3 grams of methylamphetamine and 5.8 grams of amphetamine.

11 Police also found an exercise book in the applicant's car, in which she recorded her drug dealing. The entries recorded drug trafficking between 18 March 2012 and 21 August 2013. Further handwritten drug trafficking records, dating back to 12 January 2010, were found in the applicant's bedroom. Police also found mobile phone text messages, indicating that the applicant was trafficking methylamphetamine.

12 The applicant later provided a detailed confession of her drug trafficking activities. She said that she started trafficking drugs in March 2010, and, other than a two month period around April or May 2014, trafficked on a continuous basis until arrested on 30 June 2014. The applicant admitted the drugs found in her house were in her possession for sale (charge 1 - trafficking methylamphetamine; charge 3 - trafficking amphetamine).

13 Among other things, the applicant told police that she started purchasing 'speed' and 'ice' in March 2010. She then sold it to people she knew. The applicant started out purchasing 'quarters' (that is, a quarter ounce) of methylamphetamine for $2,400 to $3,200. Sometimes she purchased half ounces; and, on one occasion, she purchased an ounce (for which she paid $9,000). In her interview with police, the applicant revealed several suppliers from whom she had purchased methylamphetamine.

14 The applicant estimated that between March 2010 and her arrest, she had sold a quarter of an ounce of methylamphetamine each week. This was the equivalent of 70 'points', being 70 deals of 0.1 gram each. Each 'point' sold for $100. The applicant's admissions were supported by text messages on her mobile phone, which showed that the applicant purchased 7 grams of methylamphetamine for $2,960. The applicant calculated that the cost of each 'point' of methylamphetamine was $42.20, so that she estimated that she stood to make a $4,046 profit for every 70 points she sold. She described her motivation for drug trafficking as being money driven.

15 Police also located 519.7 grams of cannabis at the applicant's premises. Throughout the house and in the applicant's car, police located handwritten notes recording cannabis sales, including dates, names, amounts of drugs and money owed. The applicant admitted that she had grown three cannabis plants between July 2013 and November 2013. She said that the plants yielded approximately two pounds of dried cannabis, which she sold between November 2013 and December 2013 for a total price of $5,200. The applicant also admitted to selling a 'bit' of cannabis 'here and there' between March 2010 and 30 June 2014 (charge 2 - trafficking cannabis).

16 A quantity of Alprazolam (Xanax) 2 milligram tablets was located in the applicant's bedroom. The applicant told police that she had purchased them from a stranger in a pub in Melbourne. She intended to give the drugs to her partner, who suffers from chronic pain. The applicant denied having an intention to sell them (charge 4 - possessing a drug of dependence).

17 Four MDMA ('ecstasy') tablets were found in the applicant's bathroom. She said the pills were for personal use (charge 5 - possessing MDMA).

18 Two brand new unused hot water service units, with a combined value of $1,990.45, were located in a shed on the applicant's property. The units had been stolen during a burglary in Gisborne between 1st April 2014 and 20th July 2014. The applicant claimed to have no knowledge of the units, but could not explain their presence (charge 6 - handling stolen goods).

19 Cash totalling $990, and a resealable bag containing amphetamine, were found in the pocket of one of the applicant's jackets. A further sum of $400 cash was located in a jewellery box in the applicant's bedroom. Found beside the cash was a sheet of paper containing handwritten notes relating to drug trafficking (summary charge 9 - dealing in property suspected to be the proceeds of crime). The applicant claimed the cash was earnings from her employment at a massage parlour, but she produced no evidence to support this claim.

20 It is convenient to turn first to the second ground, which asserts that the judge erred by not treating the fact that the applicant was the victim of a serious home invasion - that home invasion being a direct result of her trafficking activities - as mitigating.

21 Counsel for the applicant drew attention to the fact that, on 4 July 2014, the applicant was the victim of a home invasion where she and her partner, Darren Hall, were physically assaulted by a number of balaclava clad men. The applicant had a gun held to her head and demands for money were made. Darren Hall was repeatedly bashed to the body and head with a wooden club, and sustained serious head injuries requiring hospitalisation and rehabilitation.

22 Immediately following her arrest, the applicant had made a 'no comment' interview. After the invasion of her home, however, the applicant went to the police station on 7 July 2014, in order to make a statement about the attack. Whilst there, she was interviewed again by police in relation to trafficking. During that interview, she made significant admissions.

23 Counsel submitted that the trauma of the home invasion was 'a form of extra‐curial punishment that was capable of mitigating the sentence to be imposed'. Significant reliance was placed on a psychological report, which set out the effects of the home invasion on the applicant. The psychologist, Mr Guy Coffey, stated:

After the home invasion on 4 July 2014, she was stricken by anxiety about further attack. She felt unsafe in her home and stayed with her ex‐partner Darren for two months. After moving back home she enlisted a neighbour to look out for intruders. She continued to have daily thoughts about the attack during which she had distressing images of her former partner Darren being bludgeoned and covered in blood and a gun being held to her head.

In late July 2014, after developing thoughts about gassing herself, she was admitted for three days to a Bendigo psychiatric unit, the Alexander Bain Centre. She believes her suicidality on that occasion was precipitated by the trauma of the home invasion.

24 It was submitted that the home invasion bore on sentence in two ways. First, 'it constituted a form of extra‐curial punishment that was a direct result of the offending conduct'. Secondly, it has a 'specific deterrent effect', since it 'will serve as a reminder of the risks and potential consequences of engaging in such conduct'.

26 Sometimes an offender will suffer injury in the course of committing an offence. It has been held that such an injury may be taken into account whether self-inflicted;[5] inflicted by police[6] or security guards;[7] or by the victim.[8] In some cases, the consequences of a revenge attack or similar may be taken into account.[9] The circumstances of the present case, however, are far removed from that kind of case. Although it may be accepted that the attackers who invaded the applicant's home and assaulted her and her partner did so in order to relieve her of illicit drugs and cash, it cannot be said that the attack arose directly out of the offences with which she was charged.

27 It is a notorious fact that those who are involved in the pernicious trade in illegal drugs sometimes become the target of other criminals who, through the use of force, seek to steal their drugs and ill-gotten gains. That is one of the well-known risks associated with the illegal trade in drugs. If such a risk materialises, it cannot be said to mitigate the offence of trafficking once that offence is detected by law enforcement agencies.

28 That is not to say that the applicant's psychological state is irrelevant to the exercise of the sentencing discretion. It is one of the personal circumstances to which the sentencing court must have regard. The fact of the home invasion itself, however, cannot mitigate the sentence, either as a form of extra-curial punishment or as a factor moderating specific deterrence.

Claimed error as to the extent of the trafficking - ground 3

30 Ground 3 asserts that the judge erred in finding that, in relation to charge 1, the applicant's trafficking involved, '70 transactions a week over four and a half years represents something like 16,000 odd transactions'.

31 The asserted error is to be found in the following passage in the judge's reasons for sentence:

You repeatedly broke the law over four and a half years. You were motivated by a desire to make money. You trafficked a substantial amount of methylamphetamine over that time, knowing the damage it causes the community. You clearly profited substantially from your drug dealing business. Yours was not an isolated act of trafficking. 70 transactions a week over four and a half years represents something like 16,000 odd transactions. In my view, your conduct relating to charge 1 requires the imposition of a substantial term of imprisonment.

Although I am unable to establish the exact financial gain made by you over your four and a half years of trafficking, the factual basis in the prosecution opening was accepted by your counsel. Your counsel conceded that your trafficking was sustained and prolonged. It was motivated by a desire to profit. Some weeks you would make in excess of $4,000 profits. Others less than that. Over four and a half years, you clearly made substantial profit from your drug dealing business.

During her interview with police, the [applicant] detailed several different suppliers she had purchased methylamphetamine from.

The [applicant] estimated that between March 2010 and the time of her arrest, she sold a quarter of an ounce of methylamphetamine each week which worked out to be 70 points, or 70 deals of .1 of a gram each. The accused sold each point for $100.

The majority of sales made by the [applicant] ranged from [0.1 of a gram] up to one gram of methylamphetamine. The [applicant] explained that she mostly sold points because you make a lot more money that way.

The [applicant] explained that she tried to buy the best quality methylamphetamine and never diluted or jumped on her drugs in order to avoid complaints from her customers.

The [applicant's] admissions were corroborated by text messages in her Doro mobile phone to a contact listed as Luke. The content of these messages showed the [applicant] purchased seven grams of methylamphetamine for a price of $2,960. The [applicant] calculated that the cost of each point of methylamphetamine was $42.20. Using this calculation, the [applicant] stood to make a $4,046 profit for every 70 points sold.

34 Significantly, although the applicant's counsel had flagged in written submissions an intention to traverse the factual basis of charge 1, during the plea hearing he said that the applicant had 'given instructions not to pursue that', and, in particular, the issue of 'the period of time [over] which the trafficking occurred', since that 'is not an issue at all'. And whatever the precise extent of the trafficking, counsel for the applicant seems to have accepted that, 'it's four grand a week, every week, for four and a half years'.

35 Hence, whether or not one quibbles with his Honour's calculations, counsel for the applicant did not - and could not - quibble with the findings that the trafficking extended over a period of four and a half years (whether subject to any hiatus or not); that the applicant's 'was not an isolated act of trafficking'; that a 'substantial amount of methylamphetamine was trafficked over that time'; that the applicant was 'motivated by a desire to make money'; and that the applicant 'clearly profited substantially from [her] drug dealing business'.

36 In light of these findings, there is no substance in ground 3.

37 Ground 1 claimed that the sentences on charges 1, 2, 3 and 6, the orders for cumulation, the total effective sentence and the non-parole period, were manifestly excessive.

38 Relying substantially on Boulton,[10] counsel for the applicant urged that the judge should have imposed a sentence of imprisonment of up to two years combined with a community correction order. He submitted that the sentence was manifestly excessive given that the applicant had no prior convictions; that she had made extensive admissions; that there was evidence of specific remorse; that the applicant had attempted to rehabilitate herself (in that she ceased trafficking between her arrest and the plea); and that she had suffered psychologically as a result of the home invasion.

39 On the plea it had been put to the sentencing judge that the applicant had an unhappy childhood. Her marriage ended in 2009, and she then began a relationship with Darren Hall. Early in the relationship with Hall - which ceased in 2013 - she became addicted to methylamphetamine. The applicant had a history of substance abuse. From March 2010, she began smoking methamphetamine daily, using about a gram a week. Although she stopped using for a period in 2011, at the time of her arrest she was using up to 1.5 grams a week. With drug counselling and psychological treatment, at the time of the plea she had reduced her consumption to .1 gram every one to three weeks. She commenced drug counselling sessions in July 2014. In October 2014 she began seeing a psychologist fortnightly.

40 Although of average intelligence, the applicant struggled academically. Since her mid-twenties, she has suffered from transient but intense periods of depression. In May 2001 and May 2013 she attempted suicide. Following the home invasion of 4 July 2014, the applicant was stricken by anxiety about a further attack. She moved out of her home and stayed with Mr Hall for two months, before moving back into her home. She continued to have daily distressing thoughts about the attack. After developing suicidal thoughts, she was admitted to a psychiatric unit for three days in late July.

41 Counsel informed the sentencing judge that the applicant has three properties, subject to mortgages of about $640,000.00. (There are forfeiture proceedings in relation to those properties.) The money from the applicant's offending was spent on living expenses. Darren Hall lived with her at the time of the offending and she was financially supporting them both.

42 The respondent submitted that the applicant's motive for the offending was to make money, and she indeed made a substantial amount of money from it. The applicant's was a serious example of drug trafficking, which extended over an extended period of time.

43 Paying due regard to all relevant factors, I am not persuaded that any component of the sentence imposed is manifestly excessive. Making proper allowance for the applicant's personal circumstances, in the circumstances of this case any sentence other than an immediate sentence of imprisonment of the order imposed by the sentencing judge would have been insufficiently punitive. It is plain that the applicant was the enthusiastic proprietor of a profit-driven business in illicit drugs. Her offending was serious and protracted. In my view, it cannot reasonably be contended that the sentence is manifestly excessive.

45 The application for leave to appeal against sentence must be dismissed.

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

[2] Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is imprisonment for one year.

[3] Crimes Act 1958, s 88. The maximum penalty is 15 years' imprisonment.

[4] Crimes Act 1958, s 193. The maximum penalty is two years' imprisonment.

[5] R v Lawless (Unreported, Court of Criminal Appeal, Vic, 16 May 1989); R v Fletcher (1980) 4 Crim LJ 244.

[6] R v Barci (1994) 76 A Crim R 103. Cf R v Hannigan [2009] 2 Qd R 331.

[7] Sharpe v The Queen [2006] NSWCCA 255.

[9] Chaplin v The Queen [2010] VSCA 145; (2010) 55 MVR 591, 593-4 [13]-[14]; R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398, 410-11 [62]; R v Allpass (1993) 72 A Crim R 561.

[10] Boulton v The Queen [2014] VSCA 342.