R v Ververis and Ververis [2010] VSCA 7

1 This is an appeal against sentence by two brothers, Peter Ververis ('Peter') and Christopher Ververis ('Christopher'). Peter pleaded guilty to one count of trafficking in a drug of dependence. Christopher pleaded guilty to one count of possession of a drug of dependence, and one count of possession of a substance, material, documents or equipment for trafficking in a drug of dependence. The sentences imposed are set out in the table below.

Possession of a substance, material, documents or equipment for trafficking in a drug of dependence

2 Peter and Christopher resided together in Centre Dandenong Road, Cheltenham ('the premises'). Peter was aged 26 at the time of the offending, and 28 at the time of sentence. Christopher was aged 21 at the time of the offending and 24 at the time of sentence.

3 On Thursday 7 September 2006, police executed search warrants at the premises, as well as at an address in Bay Road, Cheltenham ('the Bay Road address').

4 At the premises, Christopher was found in possession of 415 grams of pseudoephedrine (90 per cent purity). This constituted the basis for count 2 - possession of a drug of dependence. Peter was found in possession of a sum of $11,675.00 in cash. He was also found in possession of 417.6 grams of methylamphetamine, as follows: 397.4 grams (14 per cent purity) and 20.2 grams (70 per cent purity). This constituted the basis for count 1 - trafficking in a drug of dependence by possession for sale. The traffickable quantity is three grams and the commercial quantity is 500 grams.

• substances used as precursors in the production of methylamphetamine and substances used as cutting agents; and

• items said to be consistent with drug dealing, including several mobile phones, a money counter, seal bags and electronic scales.

5 At the Bay Road address, police discovered a clandestine laboratory in a rear bungalow. They found items and substances used in the manufacture of methylamphetamine, including pseudoephedrine, and traces of methylamphetamine. Christopher's fingerprints were found on some of these items.

6 We deal with the appeals, and the grounds, in the order in which they were argued.

7 Ground 2 contended that the judge had erred by ordering that six months of the sentence on count 2 be served cumulatively upon the sentence imposed on count 3. Senior counsel for Christopher submitted that there was no reasonable basis for ordering any cumulation between the counts. It was said that the judge in sentencing Christopher on count 3 had expressly taken into account 'all of the criminality' of the conduct covered by the two counts.[1] That being so, there was no 'good reason' to depart from the prima facie rule of concurrency.[2]

8 Reliance was placed on the following passage from the sentencing reasons:

I do accept that there should be substantial concurrency between the offences to which you have pleaded guilty as your possession of pseudoephedrine was related, in my view, to your possession of the implements and equipment that you proposed to employ in an attempt to turn the pseudoephedrine into methylamphetamine.[3]

9 The decision whether or not to direct cumulation - and, if so, to what extent - is a matter for the discretionary judgment of the sentencing judge.[4] Appellate intervention is justified only if the decision arrived at was not reasonably open.[5] We are not persuaded that this is such a case.

10 It is not in issue that Christopher's possession of pseudoephedrine at the premises was related to his having established at the Bay Road address a laboratory for the manufacture of methylamphetamine. As we have noted, Christopher's submission was founded on the judge having made a finding to that effect. In assessing the total criminality represented by the two counts, therefore, it was highly relevant that the pseudoephedrine in his possession could have produced methylamphetamine with a street value of $200,000-$300,000.[6]

11 Contrary to the submission advanced, we see nothing in his Honour's sentencing remarks to indicate that he intended the sentence on count 3 to deal, in addition, with the criminality constituted by count 2. This would have been a most unusual course to take, and clear words would have been required before we would have accepted that his Honour had done so. In our view his Honour's remarks speak for themselves. He was obliged to impose sentence on each of the counts to which Christopher had pleaded guilty. Mindful of the principle of totality, he took account of the relationship between the counts and the conduct on which each count was founded, in deciding to direct partial cumulation. That decision was well open in the circumstances.

12 Peter and Christopher were interviewed by police and charged on 8 September 2006. Both made 'no comment' records of interview. Christopher was released on bail on that day, and Peter on 13 September 2009. A contested committal hearing took place on 29 October 2007. Each appellant reserved his plea and was released on bail. Six case conferences and five directions hearings took place in the following months, before the matter was listed for trial on 9 February 2009. On that date, the matter was finally resolved. The plea took place on 6 April 2009 and the sentences were imposed on 28 April 2009.

13 It was submitted for Christopher that the delay of more than two and a half years between charge and sentence was a mitigating factor which the judge should have taken into account. Counsel called in aid the principles stated by Chernov JA in R v Cockerell,[7] as subsequently applied in R v Tiburcy[8] and in R v Merrett, Piggott and Ferrari.[9] The delay was said to mitigate penalty because 'the matter hung over the appellant's head for a long time'.

14 No such submission was advanced on the plea. This is hardly surprising, given that the lapse of time was wholly referable to the ordinary - often lengthy - processes of negotiation which take place between prosecution and defence. When delay is invoked as a mitigating factor, 'it focuses attention on issues of rehabilitation and fairness.'[10] Nothing which occurred here occasioned any relevant unfairness to Christopher. No reliance was placed on rehabilitation in this context.

The individual sentences, non-parole period and total effective sentence are manifestly excessive.

17 Manifest excess is a ground commonly, even routinely, advanced on applications for leave to appeal against sentence. It is, however, a difficult ground to make good, for the reasons given by Maxwell P in R v Abbott:[11]

The ground of manifest excess will only succeed where it can be shown that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.

The 'range' for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.

18 In support of the contention that all components of the sentence fell outside the range of a sound discretionary judgment, emphasis was placed on the following mitigating factors:

(b) Christopher's relative youth (21 at the time of the offence and 24 at the time of sentence);

(d) his use of drugs, particularly methylamphetamine, as reducing his moral culpability;

(e) the fact that this was Christopher's first term of imprisonment; and

(f) the delay between the commission of the offence and sentence.

19 It was submitted that three years' imprisonment on count 3 was itself manifestly excessive. According to the submission:

The maximum penalty for this offence is 10 years' imprisonment. The appellant had no prior convictions for this type of offence. The photographic evidence led the sentencing judge to note the 'ramshackle nature of the laboratory'. In addition, the sentencing judge accepted the submission that the 'laboratory was certainly not the most professional operation and appears to be untidy and disorganised'.

20 Developing this last point, senior counsel for Christopher submitted that the prosecution had not proved - and could not have proved - that Christopher had the capability to achieve his admitted aim of manufacturing methylamphetamine. All the prosecution could show, it was said, was that Christopher 'was keen to have a real go.' In those circumstances, it was submitted, Christopher's conduct in establishing a laboratory had to be viewed as less blameworthy than the same conduct engaged in by a person with proven capability as a methylamphetamine 'cook'.

21 Circumstances may perhaps be imagined in which an offender could demonstrate his own incapability as a 'cook' so clearly that it might be said to mitigate the seriousness of his having had in his possession the requisite equipment and substances with intent to manufacture. But that would be a matter to be proved by the defence, on the balance of probabilities. In the present case, a submission along these lines was advanced on the plea but the judge pointed out - correctly - that the evidence showed that Christopher had successfully manufactured some methylamphetamine. The defence called no evidence to substantiate the 'incapability' argument, which was therefore properly rejected.

22 These were serious offences, as his Honour said. In our view, the sentences were within range.

23 Christopher's appeal must therefore be dismissed.

Ground 3: was the relationship breakdown explanatory of the offending?

24 At the forefront of the plea in mitigation made on behalf of Peter was the fact that, some two months before the offending occurred, his long-term relationship had come to an end. This was said on the plea to have been the 'specific and identifiable causative event'. Reliance was placed on a report by a consultant psychologist, Mr Ian Mackinnon, which said in part:

From around the age of 20 years to 26 years, Mr Ververis maintained a romantic relationship with an Australian female celebrity entertainer. In the course of this relationship, Mr Ververis travelled overseas frequently and the two of them lived together for periods in the UK and the USA. This relationship ended badly when Mr Ververis read in a magazine (in July 2006) that his partner had taken up with a new boyfriend. This was apparently the only means by which he was ever informed that their relationship was over, and he now rues the fact that he was never provided with an explanation from his former girlfriend:

'I was cut up. It was a messy break-up. By that stage we were in the USA. I was travelling between Melbourne and LA. I ended up reading about it ... I'd been planning on joining her in the USA. Out of the blue, I got dumped. She almost sent me paranoid. I read it in a magazine. I saw a photo of her and her new boyfriend in a magazine.'

Psychological state at the time of the offences: In my opinion, at the time of the current offence (September 2006), Mr Ververis was probably suffering from the following significant diagnosable psychological disorders:

• substance dependency (primarily methylamphetamine);

• depression.

At the time, Mr Ververis' judgment was likely to have been significantly impaired by a substance dependency, that included the use of methylamphetamine, amphetamine, and cannabis.

His substance dependency at this time appears to have been driven by his grief and depression over the break up with his partner (which occurred approximately two months prior to the offence). This was a partner with whom he had plans to remain, and possibly eventually marry. To discover that the relationship was over by reading about it in a magazine was particularly devastating for Mr Ververis. Dealing with emotional anguish that he had never previously experienced, and having to deal with his private life being played out in the public domain, Mr Ververis apparently sought escape by habitual use of large amounts of 'ice' - smoking it from a glass pipe - and 'stayed aware for days on end ... using ridiculous amounts ... five or six grams a day ... and then two or three whole pills of Xanaxes to knock me out. I stopped caring. I couldn't care less. I burnt holes in my pockets. Made the biggest mistakes in my life. I can't remember half of what I did ...'

I note also that in late 2006 to 2007 Mr Ververis accrued multiple driving offences in the space of a few months, behaviour which appears to reflect his general lack of concern for the consequences of his actions (for himself and for others) during this difficult time in his life. In general terms, Mr Ververis appears to have been 'self destructing' at the time.

Upon the relationship ending in such a sudden and harsh manner, Mr Ververis appears to have then realised how much he had invested in the relationship and how disadvantaged he had left himself by his many efforts to meet his partner's demands and schedules. This realisation appears to have added to his sense of loss, his self esteem fell, he became depressed, he lacked clear direction, and (in a relative sense) he stopped caring about himself or the consequences of his actions. In this context, he found an escape from his emotional problems in the habitual use of large quantities of 'ice' and also used cannabis to 'come down' from binges on ice. Over an intense two month period (between his break up with his girlfriend and his arrest over the current charge) Mr Ververis' dependency on ice became entrenched, he neglected his legitimate business activities, and got involved in activities which led to the current charges because his day-to-day activities revolved around obtaining and using ice.

27 In argument on the plea, the sentencing judge expressed scepticism at the proposition that the end of a relationship, however traumatic, could be said to explain a person's commencing to traffick methylamphetamine. (Peter had pleaded guilty to trafficking by possession for sale.) His Honour said in the course of argument:

I have no problem with accepting that he was involved in a relationship that went bad - why that turned you into a methylamphetamine dealer I don't know.

28 On two separate occasions, the judge asked defence counsel whether he proposed to call evidence to establish the asserted link between the relationship breakdown and the trafficking offence. On the second of these occasions, his Honour said:

... [W]ithout evidence, it's hard to accept, and I simply make the point that I'm sceptical about that. I don't see that a broken romance causes one to become a methylamphetamine trafficker. What you're saying is he used so much he needed to fund his habit so he was trafficking. The amount of money that he's got in his kick would fly in the face of that. He doesn't need to traffick; he's got bucket loads of money; he could just buy it from his brother and use it.

I raise these matters because they concern me and I've got to sentence your client.

At this point, defence counsel sought instructions from his client, before informing the judge that it was not proposed to call any evidence during the course of the plea. Defence counsel maintained, nevertheless, that the proximity in time of the break-up to the offending was 'pivotal'.

29 In his sentencing reasons, the judge dealt with this matter as follows:

Your counsel ... relied upon the report of Mr McKinnon to support the proposition that your offending could be connecting to your break up with your then girlfriend.

As I indicated during discussion with your counsel, I find those assertions difficult to believe and there is simply no evidence to support that submission. [Counsel] declined to call any evidence in support of his submissions and I have real difficulty accepting assertions made by you to a psychologist that are not supported by any evidence. I do accept that you were substance dependent at the time of your offending and generally depressed as a result of your break up of your relationship. I note in this regard Mr McKinnon's opinion and conclusions are, to some extent, guarded and tentative in nature.[12]

30 In our view, this ground of appeal is without substance. His Honour was entitled to be sceptical about the asserted link between the relationship breakdown and the trafficking offence. Moreover, he acted with scrupulous fairness in informing defence counsel of his scepticism and, in effect, warning counsel that in the absence of evidence to verify the asserted link, the submission was unlikely to be accepted. Counsel sought instructions from his client, which evidently were that no evidence would be led. The rejection of the asserted link was, in the circumstances, inevitable.

31 In the course of his reply submissions on the appeal, counsel for Peter contended that - leaving aside the asserted connection with the relationship breakdown - his client's culpability should be seen as reduced by the fact his having been substance dependent and 'generally depressed' at the time of the offending, as the judge found. Although disavowing any reliance on the first of the principles restated in R v Verdins[13] (which is concerned with reduced moral culpability on account of impaired mental functioning), counsel nevertheless maintained that drug dependence, depression and emotional stress associated with a relationship breakdown should be viewed as materially reducing his client's moral culpability.

32 In our view, this submission must be rejected. Counsel properly accepted that none of these factors could be said to have a bearing on moral culpability unless it was established that they were explanatory of his client having engaged in trafficking. Just as the judge was right to reject the relationship breakdown as relevantly explanatory, so the emotional sequelae afford no mitigatory explanation for this serious criminal behaviour. Importantly, as the judge pointed out, Peter had sufficient funds on hand to render implausible the contention that he was trafficking in order to feed his own substance dependency. That is the subject of ground 2, to which we now turn.

The learned sentencing judge erred by having regard to an irrelevant consideration, namely the cash found at the appellant's residence.

The judge referred in his reasons, as had the Crown opening on the plea, to the finding of $11,675 in cash in Peter's possession. Later in his reasons, the judge said:

You became involved in serious drug trafficking and the suggestion that you trafficked or intended to traffick for the purpose of supplying your own habit is difficult to accept when you are in possession of substantial amounts of cash.[14]

As appears from the exchange quoted above, [15] this was a matter which the judge had raised with counsel on the plea. No evidence was called on behalf of Peter as to the source of the cash found in his possession.

34 The argument advanced on the appeal was that the question whether there was any connection between the cash and the trafficking had been referred to another judge, for consideration of possible forfeiture under the Confiscation Act 1997 (Vic). That having occurred, it was submitted, the presence of the cash was wholly irrelevant to sentence.

35 This submission was misconceived, in our view. His Honour's reference to the presence of the cash involved no assumption that it in any way represented the proceeds of trafficking. Instead, his Honour was simply seeking an explanation for what had been said to be Peter's need to traffick (in order to feed his own habit), when he evidently had ready cash to hand. No such explanation was forthcoming on the plea, nor on the appeal.

37 Under this ground, it was argued that both the head sentence and the non-parole period were manifestly excessive. Reliance was placed on the following matters:

(c) Peter's 'sound educational record, including the completion of a tertiary degree';

(h) the fact that this was his first term of imprisonment;

(i) the positive finding that he had 'quite reasonable prospects of rehabilitation'; and

(j) the fact that he pleaded guilty to the trafficking charge on the basis of possession for the purpose of sale and therefore it concerned trafficking that was prospective in character and where no sales had occurred.

38 In our view, the sentence of two years and six months was well within the range available to his Honour, taking all these matters into account. As noted earlier, Peter was found in possession of 417.6 grams of methylamphetamine, which represented more than 80 per cent of a commercial quantity. It was submitted on the appeal that not all of this quantity was 'necessarily' possessed for sale. This submission was directly contrary to what had been said on Peter's behalf on the plea, which was that he fell 'to be sentenced for ... trafficking on the basis of possession for sale of that amount of methylamphetamine', that is, the amount found in his possession. Had the defence wished to establish that the amount properly the subject of the trafficking count was some amount less than the total found, appropriate evidence would have had to be called. That was not done.

39 The maximum penalty of 15 years' imprisonment illustrates how seriously drug trafficking is viewed by Parliament and the community. This ground must fail.

40 Counsel for Peter advanced essentially the same argument on this ground as had been advanced on Christopher's behalf. Once again, no such argument had been raised on the plea.

41 As we have said, what occurred here occasioned no relevant unfairness to either appellant. As to rehabilitation, the judge expressly sentenced Peter on the basis that he had reasonable prospects of rehabilitation. Nothing which had occurred in the period between charge and sentence warranted any more favourable conclusion than that. This ground must be rejected.

42 Accordingly, Peter's appeal must also be dismissed.

[1] Cf R v GJ [2008] VSCA 222, [77].

[2] Cf R v Mantini [1998] 3 VR 340, 348 (Callaway JA).

[3] R v Ververis and Ververis (Unreported, County Court of Victoria, Judge Chettle, 28 April 2009) [30].

[4] R v O'Rourke [1997] 1 VR 246, 253.

[5] R v Mantini [1998] 3 VR 340, 349-50.

[6] R v Ververis and Ververis (Unreported, County Court of Victoria, Judge Chettle, 28 April 2009) [11].

[7] [2001] VSCA 239; (2001) 126 A Crim R 444.

[8] [2006] VSCA 244.

[9] [2007] VSCA 1; (2007) 14 VR 392.

[11] [2007] VSCA 32; (2007) 170 A Crim R 306, 309.

[12] R v Ververis and Ververis (Unreported, County Court of Victoria, Judge Chettle, 28 April 2009) [16]-[17].

[13] [2007] VSCA 102; (2007) 16 VR 269.

[14] R v Ververis and Ververis (Unreported, County Court of Victoria, Judge Chettle, 28 April 2009) [21].

[15] See [28] above.