R v Vellios [1999] VSCA 163

Court of Appeal (Vic)|1999-09-07|Before: BROOKING, TADGELL and CHERNOV, JJ.A.

The applicant has been unable to sustain employment over any long period of time. For approximately one year he was apprenticed to his father as an electrical mechanic, but after his car accident he was unable to continue with his apprenticeship. He worked for a short time in electrical maintenance and then returned to work for his father until he was injured in again 1989. He has not worked since.

The applicant married in September 1988 and he and his wife have one son. His marriage, however, broke up in 1992 and it seems that he has accepted that this occurred as a result of his drug use. There was also material before his Honour which was concerned with the applicant's personal development after he was placed in custody, in particular, his use of medication and counselling services to combat his drug problem. During the plea in mitigation, his counsel highlighted that the applicant had already spent a considerable period of time in custody and had, during that period, attended rehabilitation courses and generally behaved in an exemplary manner, on one occasion giving protection to a warder during a period of unrest that had taken place in the gaol. It was also pointed out to his Honour that whilst in custody the applicant had been free of any form of drug use.

It is obvious that his Honour took all those matters into account in his sentencing considerations and there is no indication, as I have said, that he did not give them due weight.

The fact that the applicant pleaded guilty was also canvassed by his counsel, who conceded nevertheless, that a custodial sentence had to be imposed on his client, although he argued that it should not be a crushing one.

On the question whether the applicant had shown remorse, there was little evidence from which one could fairly draw such an inference. True it is that there was evidence about his resolve to remain drug free. Similarly, there was evidence about his good behaviour while in custody, as well as his plea of guilty. All these matters were taken into account by his Honour. On the other hand, even during the hearing of the plea in mitigation of sentence, the applicant sought through his counsel to paint the picture to the learned sentencing judge that he was but a "lackey" of Clarke and did not in his own right take part in operating the business of trafficking in heroin. His Honour rejected these claims which are not, in my view, consistent with a display of genuine remorse. Indeed, his own counsel did not press in his submissions on the plea in mitigation, that the applicant had shown genuine remorse.

In my view, the sentence imposed was within the range available to his Honour. The offence is a serious one attracting a maximum term of imprisonment of 15 years. The trafficking in which the applicant was engaged was of significant proportions and was carried out over a relatively lengthy period of time. It ceased only because the applicant was arrested. The courts have spoken on numerous occasions of the harm that is perpetrated upon the community by drug trafficking: see, for example, R. v. Berisha [1999] VSCA 112, per Charles, J.A. at paras.32 and 33; per Tadgell, J.A. at paras.39 and 40 and R. v. Pantsis [1998] VSCA 134, per Tadgell, J.A. at para.12.

For these reasons I am of the view that the grounds of the proposed appeal have not been made out and that accordingly, the application should be refused.

I agree and add a few words only because of the unusual course taken by this application. The argument put by the applicant, by means of a written submission which had obviously been prepared by him as instructions to his former solicitor, contained nothing at all bearing on the grounds of his application, which grounds had been professionally prepared. This written submission challenged the judge's findings about the applicant's role in the business of trafficking in heroin. These findings are in no way challenged by the grounds of appeal. There was no question of allowing the grounds of appeal to be amended, since any new ground of appeal that might have been formulated in reliance on the written submission could not have succeeded.

I too agree that the application for leave to appeal against sentence should be refused.

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