Short v The Queen [2016] VSCA 210

1 On 12 April 2016, the applicant (now aged 26) pleaded guilty to trafficking in a drug of dependence[1] and five related summary offences consisting of possession of a drug of dependence, possession of a general category handgun by a non-prohibited person, possession of a prohibited weapon and two charges of dealing with property suspected of being proceeds of crime. Following a plea on 12 April 2016, the applicant was sentenced on 29 April 2016 as follows:

Trafficking in a drug of dependence (methylamphetamine) [Drugs, Poisons and Controlled Substances Act 1981 ('DPCSA') s 71AC]

[DPCSA s 71AC]

Possession of a drug of dependence (cannabis) [DPCSA s 73]

5 penalty units (trafficking excluded) [DPCSA s 73 (1)(a)];

5 years' imprisonment or 400 penalty units or both [DPCSA s 73 (1)(c)]

Possession of a general category handgun - non-prohibited person [Firearms Act 1996 s 7(1)]

[Firearms Act 1996 s 7(1)]

Possession of a prohibited weapon (Taser) [Control of Weapons Act 1990 s 5AA]

240 penalty units or 2 years' imprisonment [Control of Weapons Act 1990 s 5AA]

Dealing with property suspected of being proceeds of crime (CCTV camera packs, chainsaw, computer equipment, jewellery and $3000) [Crimes Act 1958 s 195]

2 years' imprisonment [Crimes Act 1958 s 195]

Dealing with property suspected of being proceeds of crime ($63,125)

[Crimes Act 1958 s 195]

2 years' imprisonment [Crimes Act 1958 s 195]

12 years' imprisonment with a non-parole period of 7 years and 6 months' imprisonment

2 The applicant seeks leave to appeal on the following grounds:

1. The learned sentencing judge erred in imposing a sentence of 9 months' imprisonment on Summary Charge 3 in circumstances where the maximum available penalty was 5 penalty units.
2. The learned sentencing Judge erred in characterising the seriousness of the offending, and included matters that occurred outside the between dates as matters going to the seriousness of the offending.
3. The individual sentence on Count 1, and the sentence on Summary Charge 3, are manifestly excessive in the circumstances. In particular, the learned sentencing Judge gave too great a weight to denunciation and general deterrence, and insufficient weight to the personal circumstances and rehabilitation of the applicant.

3 The applicant was involved in a large drug syndicate in the area of Wangaratta which was uncovered and investigated by a police operation called 'Operation Juliet'. The applicant was involved at a high level within the syndicate and was identified as a main distributor of methylamphetamine within the Wangaratta region. A number of co-offenders have been convicted of similar offences.

4 The applicant pleaded guilty to an indictment which alleged trafficking between 10 January 2014 and 5 August 2015, although her involvement had begun in 2013. The applicant sourced methylamphetamine, at times with co-offender Jessica Fogarty and at times alone, those drugs then being distributed and on-sold. During 2013 and early 2014, the applicant and Fogarty operated in a partnership until they had a falling out and the applicant began operating independently. The applicant was involved 'at the high end of the pyramid'[2] of what was a very sophisticated and professional business.[3]

5 The details of the applicant's involvement in the trafficking were described by the judge as follows:

... You had various methods of dealing in drugs, storing drugs at various locations, private and public, in which dealing occurred, various arrangement forms of delivery and distribution. You rewarded those you trafficked with using price controls and reductions and the use of credit. You discussed the processes involved in conversations, which were recorded, and proposed methods of streamlining the business transactions and avoiding difficulties. You set up surveillance cameras on premises. You gave written clear instructions to underlings as to the methodology which you wanted followed during absences or holidays, leaving an amount worth about $10,000 of ice for sale. These instructions were contained in computer files and documents and covered the granting of credit, an assessment of prospective clients, the recording of sales, inter alia.

Further instructions concerned the access to your headquarters, the disposal and storage of drug paraphernalia, the assembly of material, its weighing and cutting. Most significantly you anticipated and made preparations for the eventuality of being imprisoned, pragmatically setting out tasks and requirements in full appreciation of the illegal nature of the endeavour and in the absonant and contumacious cause and course of your behaviour.[4]

6 There was evidence from drug ledgers, telephone intercepts and records, financial records, and co-accused which established that the applicant was frequently and consistently trafficking methylamphetamine from her home address, and travelling between Wangaratta and Albury/Wodonga. The police also had CCTV footage of the applicant's premises depicting drug suppliers and numerous co-accused attending her address. Various drug users provided police with statements as to the applicant having supplied them with methylamphetamine.

7 On 5 February 2014, the police executed a search warrant on the applicant's house. They seized a handwritten drug ledger that recorded drug transactions exceeding $160,000.

8 On 24 March 2014, a community correction order without conviction was imposed on the applicant for charges of possession and use of amphetamine.

9 On 31 July 2014 and again on 5 August 2014, a covert operative purchased 1 gram of methylamphetamine from the applicant. On the first occasion the drug was tested at 100 per cent purity. On the second occasion, the drug was tested at 73 per cent purity.

10 On 11 September 2014, police executed a search warrant at the applicant's address. Police located digital scales, drug ledgers, approximately 3.5 grams of bagged methylamphetamine and a quantity of plastic bags commonly used for packaging drugs. Police also located $575 cash. Police found a pen pistol (summary charge 8 - Possess general category registered handgun non-prohibited person) and a taser (summary charge 9 - Possess prohibited weapon) in the applicant's bedroom. They also seized items suspected of being the proceeds of crime including CTV camera packs, a chainsaw, a motor vehicle and computer equipment (summary charge 14 - Deal with property suspected of being proceeds of crime) and found evidence of $63,125 having been laundered through TAB accounts by the applicant (summary charge 21 - Deal with property suspected of being proceeds of crime). Analysis of the computer equipment revealed evidence of extensive drug trafficking and involvement with stolen goods, including firearms.

11 Following execution of the search warrant, the applicant was arrested, interviewed, charged and remanded in custody until 15 January 2015 when she was released on bail. Immediately upon her release, the applicant resumed dealing drugs until her ultimate arrest on 5 August 2015.[5] Police conducted surveillance on the applicant's address, which identified drug suppliers and drug users attending her house, including two drug deliveries on 21 June 2015 and 17 July 2015. On 17 July 2015, police intercepted the vehicle involved in the drug delivery after it left the applicant's house. A search of the vehicle uncovered a quantity of cannabis, plastic bags and two pen pistols.

12 On 5 August 2015, another search warrant was executed on the applicant's house. Police seized $3,150 cash, a police radio scanner, one gram of cannabis (summary charge 3 - Possess a drug of dependence), a drug credit ledger totalling $9,970 and a clip seal bag containing approximately 3.5 grams of methylamphetamine. The applicant was arrested on that date and remanded in custody.

13 The applicant is 26 years of age and was between 23 and 25 years of age at the time of the offending. The applicant's mother passed away from complications shortly after her birth. The applicant learnt of her mother's death, and the fact that her father's partner and step-sister were not her biological family, when she was 10 years old, which traumatised her.[6]

14 The applicant had a troubled adolescence. She was bullied at school during years 7 and 8. Her behaviour declined towards the beginning of high school, and by Years 9 and 10 she had begun to self-harm. At the age of 16 the applicant reported being sexually assaulted. After that, her mental health declined and when the applicant was aged 18 or 19 self-harm was replaced by drug use, starting with alcohol and progressing over time to ecstasy, amphetamines and methylamphetamine. By age 21 the applicant was using a gram per day of methylamphetamine.[7]

15 At the age of 21, the applicant was in a volatile relationship characterised by drug use and domestic violence. She terminated a pregnancy because of the violent attitude of her partner during the pregnancy. The applicant's drug use escalated and together with the relationship, led to undesirable associations and social networks related mostly to criminal activities.[8] By the time of her arrest in 2014, the applicant was reportedly using 3.5 grams of methylamphetamine per day.[9]

16 A report by a consultant psychologist, Ms Lechner, stated that the applicant was reasonably overwhelmed by emotional factors which, together with her drug abuse, undermined her judgment and decision-making. The report stated that the applicant seemed to have 'lived a dual life' of good daughter and good employee on one hand while abusing and selling drugs on the other hand.[10] Her involvement with the drug syndicate provided the applicant with feelings of belonging and empowerment.[11]

17 The applicant was said by Ms Lechner to evidence symptoms of a stimulant use disorder in early remission, major depression and some symptoms of post-traumatic stress disorder related to the sexual assault and an incident involving the petrol-bombing of her car in 2012. The applicant's history of mental health issues was said to predate her drug addiction and her involvement in criminal matters.[12]

18 As at the time of sentencing, the applicant was said to be abstinent and keen to remain so upon release. The applicant sought admission to a rehabilitation program once in April 2015 and again around the time of her arrest.[13]

19 The applicant has a good work history which commenced at the age of 16, despite the personal difficulties she experienced. The applicant worked for McDonalds for some seven years, then for a previous partner's parents' business, with her father on a part-time basis at a science lab and also at a restaurant in Beechworth.[14]

20 The applicant has a close and supportive relationship with her father and step-sister who were both in court during the plea.[15] Other testimonials were put forward on the plea.

21 The judge stated that the evidence showed the applicant to be at 'the high end of the pyramid' and with a level of knowledge, involvement and activity at the same level as Fogarty who nevertheless trafficked at much greater levels of quantity and value and for a greater period of time.[16]

22 In relation to the weapon-related charges, the judge stated that '[w]eapons may be a protected incident of trafficking but that does not reduce the aggravation by their presence.'[17]

23 The judge took into account the duration of the offending which he said was clearly a relevant consideration.[18]

24 In assessing the gravity of the trafficking, the judge conducted an analysis of the planning involved. He found that the circumstances surrounding the offences demonstrated a 'relatively careful plan over a considerable period to ensure its success' and a 'deliberateness and premeditation' which reflected that the trafficking was not driven only by the applicant's addiction, but largely by other factors including greed and demonstrated a 'criminal mindset which ignores the social damage and the sanctions of the law.'[19] The judge described the undertaking as one with 'all the hallmarks of a substantial business involving the exploitation of those who had a drug dependency with all its misery.'[20]

25 The judge acknowledged that the applicant did not derive any significant profit or benefit in the long term by way of enrichment in the aftermath of the offending, but stated that that fact should not ameliorate the applicant's sentence, lessen the gravity of the offence or reduce its penalty.[21]

26 The judge took into account the scale of the harm to victims and made the following comments in that regard:

The impact of such large scale and sustained trafficking in a relatively small rural community and surrounding areas is significant. The potential harm done to victims and the consequences, potential or real, to persons addicted to ice, their health, their health costs, the consequences to their family and social fabric and structures, the consequential criminality which descends on to the community must be considered when the court looks at the gravity of the conduct.

... Ice is a most addictive, pernicious drug and the community is rightly alarmed by its prevalence and by the behaviour of users provoked by its use. Its trafficking is a significant social evil. Drugs of addiction, such as ice, wantonly sourced, distributed and used continue to present a heavy and hardly tolerable burden to a modern community which looks to the court to denounce and punish that conduct by resolute and clear and appropriate punishment which will deter others who may be minded to engage in it.[22]

27 The judge described the applicant as 'at the apex, or very close to it, of the criminal enterprise' and as having 'pursued this conduct with single-minded determination, method and intent' rather than being an end user.[23] In such circumstances, and where the applicant knew the high stakes involved and the potential for punishment but continued to deliberately seek its rewards, the judge said that denunciation, general deterrence and community protection must be primary considerations.[24]

28 Personal circumstances, though relevant, were said to have lesser weight than they might otherwise have in the face of the magnitude of the enterprise. Although the applicant was in part motivated by the need to fund her own addiction, which tends to a lessening of culpability, for the reasons referred to at [24] above that factor was of lim[25]ed weight.25

29 The personal circumstances and background, which the judge took into account, included the matters described at [13]-[[](#_Ref4 > The learned sentencing Judge erred in characterising the seriousness of the offending, and included matters that occurred outside the between dates as matters going to the seriousness of the offending.

Particulars:

1. The learned sentencing judge included matters outside the charged dates when assessing the seriousness of the offending. In particular, the learned sentencing judge referred to a matter occurring September 2013.

40 According to the applicant, on the plea the prosecutor stated that what had occurred in 2013 was not put as a circumstance of aggravation, notwithstanding that the Summary of Prosecution Opening included reference to numerous matters that occurred in 2013. The judge said that he accepted this.[36]

41 The applicant submits that despite this, when describing the nature and extent of the applicant's trafficking for the purpose of sentencing, the judge included references to the fact that in September 2013 the applicant was in a vehicle, which was found to contain 97.5 grams of amphetamine with a potential street value of $97,000 as well as 21 grams of GHB liquid.[37] This incident does not form part of the offending for which the applicant was to be sentenced. There was said to be a lack of clarity as to where in the sentencing remarks the judge summarised the offending for which he was sentencing the applicant.

42 The applicant submits that the judge's reasons, read overall, reveal that he had regard to this prior conduct in his assessment of the charged trafficking. According to the applicant, this resulted in a sentence on charge 1 that was excessive in all the circumstances.

43 There is no substance in this submission. The judge was told during the plea, and made it clear in his reasons, that the applicant was not to be sentenced for any activity that fell outside the charged period. The judge stated that he viewed the activity that occurred prior to the charged period 'as background material only [which enabled a] proper understanding' of the background to the charged offending and which 'will not be dealt with or punished in any sense by my sentence, which is exclusively in reference to the charged period.'[38] There was no error in this approach.

44 That leaves the suggestion in the ground that the judge erred in characterising the seriousness of the offending. This contention is more appropriately considered under ground 3, to which we now turn.

45 Ground 3 of the applicant's grounds of appeal is in the following terms:

The individual sentence on Count 1, and the sentence on Summary Charge 3, are manifestly excessive in the circumstances. In particular, the learned sentencing Judge gave too great weight to denunciation and general deterrence, and insufficient weight to the personal circumstances and rehabilitation of the applicant.

Particulars

1. The learned sentencing Judge erred in imposing a sentence of 8 years' imprisonment on Charge 1 in all the circumstances;
2. In particular, the learned sentencing Judge erred in giving less weight to the applicant's personal circumstances given the "magnitude of the enterprise".
3. The applicant is 25 years old, relatively young, and has a troubled history of being bullied, self-harm, sexual assault, domestic violence and substance abuse. She also, remarkably, has a good employment history, strong work ethic and family support, and therefore good prospects of rehabilitation. Her personal circumstances should have been given full weight by the learned sentencing Judge.
4. The sentence of 8 years' imprisonment is manifestly excessive in all the circumstances.

46 The applicant submits that there is nothing in the offending that mandates the judge's approach of giving less weight to the applicant's personal circumstances 'than might otherwise be given in the face of the magnitude of the enterprise.'[39]

47 The applicant's written case and oral submissions emphasised various aspects of her personal circumstances including that she was relatively young at the time of the offending (aged 23 to 25) and sentencing (aged 25), has had a troubled history of bullying, self-harm, sexual assault, domestic violence and substance abuse, has a good employment history, a strong work ethic and has the support of her family. The applicant submits that these circumstances should have been given full weight by the judge.

48 The applicant submits that the judge gave insufficient weight to the applicant's rehabilitation as at the date of the plea, which she describes as 'considerable', and her overall prospects of rehabilitation, which she said were 'very favourable' and which the judge found to be 'probably good'.[40]

49 The applicant also submits that the judge gave insufficient weight to other factors favourable to the applicant, including: her early plea of guilty given at the further committal mention (which the applicant says should properly be regarded as a plea at the earliest opportunity given there was no contested committal), her time in custody, her rehabilitation to date, her prospects of rehabilitation, her employment history, the support of her parents, her very limited criminal history (in particular no prior convictions for trafficking) and her remorse.

50 Counsel for the applicant referred to 'Sentencing Snapshot' documents published by the Sentencing Advisory Council which stated that principal sentences of imprisonment for offenders convicted of trafficking in a non-commercial quantity of drugs between 2010-11 and 2014-15 ranged from 1 month and 22 days to 6 years, while the median length of imprisonment was 2 years and 3 months.[41] By comparison, principal sentences of imprisonment for offenders convicted of trafficking in a commercial quantity of drugs between those dates ranged from 4 months and 3 days to 8 years, while the median length of imprisonment was 4 years.[42]

51 Counsel also referred to Milk v The Queen[43] in which case an offender was sentenced to 5 years and 1 months' imprisonment for four years of persistent trafficking of a substantial quantity of drugs for profit in circumstances where there was no suggestion of addiction. Here, by contrast, the applicant had no prior criminal history of trafficking, although she had one matter relating to possession and use of methylamphetamine.

52 According to the applicant, regarding the matter overall, the sentence of 8 years' imprisonment for the offence of trafficking simpliciter is outside the permissible range and manifestly excessive in all the circumstances.

53 The Crown does not deny that a sentence of 8 years' imprisonment by reference to the applicable maximum of 15 years' imprisonment for the offence of trafficking simpliciter is a very high sentence. Indeed, the 'recent cases' section of the Sentencing Manual published by the Judicial College of Victoria indicates that the sentence is one of the highest recorded, which invited close scrutiny.

54 Despite this, the Crown submits that the application for leave to appeal against sentence on charge 1 should be refused. According to the Crown, when all the relevant facts are taken into account, although the sentence was a stern one at the upper end of the range, it could not be said to be wholly outside the range and was open to the judge.

55 The Crown submits that the applicant was at the apex of a significant and very sophisticated trafficking business that was dealing in vast amounts of the drug 'Ice' for significant sums of money. As at the date of the commencement of the charged period, the applicant had fallen out with Fogarty and was running the enterprise on her own. Although the Crown accepts that the applicant was addicted to Ice, it submits that the applicant was not trafficking in amounts that were limited to satisfying her habit. The profits were said to be such that the applicant must have been predominantly motivated by 'pure greed' and her conduct was thus worthy of 'profound denunciation'. The Crown describes the applicant as a 'true businesswoman' with an 'entrepreneurial spirit' with respect to her trafficking, which was said to be demonstrated by the instructions she left to her assistant when she briefly left the jurisdiction.[44] She was even seen to have planned for if and when she went to gaol. The applicant was said to have conducted a strict business with forethought and planning. There were also said to be discussions about violence, threats of violence and the use of torture to exact payments or coerce persons to cooperate.

56 Further, the Crown noted during oral submissions that throughout the period of the operation of the drug syndicate, there was police involvement, the applicant was arrested and remanded in custody, appeared in the Magistrates' Court and was the subject of a Community Correction Order. None of these facts appeared to have a deterrent effect on the applicant who was prepared to continue offending regardless. The Crown submits that in these circumstances, considerable weight should be given to specific deterrence.

57 The Crown also submits that the judge was entitled to have regard to the prevalence of 'Ice' as a drug of addition in the community,[45] which permitted even greater weight to be given to general deterrence than may otherwise be the case.[46]

58 The Crown accepted that there were factors 'on the other side of the ledger'.

59 In relation to the statistics quoted by the applicant during oral submissions, counsel for the Crown submitted that it is difficult to compare cases of this nature and that just because a sentence is a very high one, does not mean it is outside the permissible range. As identified by this Court in Quarrell v The Queen,[47] a comparison with sentences imposed in respect of comparable offences does not give a court of appeal much assistance in determining the question of whether a particular sentence is manifestly excessive. Accordingly, the applicant's references to sentencing statistics and Milk are of limited weight and ought be used, at most, as a rough cross-check.

60 We agree with the Crown's submissions that the applicant's apparent disregard for the consequences of her actions, the purposeful and business-like way in which she conducted her large drug trafficking business and the fact that she was at the apex of that business throughout the charged period, warrant significant emphasis being placed on specific deterrence. We also consider that general deterrence requires significant weight for the reasons outlined by the judge. We consider too that the judge was correct to conclude that a stern sentence was warranted.

61 However, there were to be balanced with those considerations matters personal to the applicant, in particular her relative youth, sad history including drug addiction from around the age of 17 and self-harm following an instance of sexual assault, reasonable prospects of rehabilitation and family support, together with the early plea. These matters have been set out at length above.

62 In our view, having regard to all the competing considerations, the sentence imposed on charge 1 was manifestly excessive. It may be understood why the judge went in the direction of a severe sentence, but, nevertheless, the appropriate disposition was a sentence of appreciably less severity.

63 For these reasons, the application for leave to appeal will be allowed, in the case of summary charges 3 and 8 against conviction, and in the case of charge 1 against sentence which will necessitate resentencing on all charges. As mentioned, on summary charges 3 and 8 the convictions will be set aside and the charges transferred to the Magistrates' Court for hearing and determination. The applicant will be resentenced on all other charges as follows:

• Charge 1 - 6 years and 6 months.
• Summary charge 9 - 3 months.
• Summary charge 14 - 9 months.
• Summary charge 21 - 9 months.

64 We will cumulate 2 months on each of charges 14 and 21 on the sentence on charge 1 making a total effective sentence of imprisonment of 6 years and 10 months, and impose a non-parole period of 4 years and 3 months. A period of pre-sentence detention will be declared. Pursuant to s 6AAA we state that but for the plea, a period of 9 years' imprisonment with a non-parole period of 6 years and 6 months would have been imposed.

[1] This offence was alleged on a Giretti basis: R v Giretti (1986) 24 A Crim R 112.

[2] DPP v Short [2016] VCC 512 [4] ('Reasons').

[33] Charge 3 by s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 and charge 8 by s 189A of the Firearms Act 1996.

[34] [2012] VSCA 297; (2012) 272 FLR 58.

[35] This approach is consistent with the approach in Nguyen v The Queen [2012] VSCA 297; (2012) 272 FLR 58, [28].

[41] 'Sentencing Snapshot: Trafficking in a non-commercial quantity of drugs', Sentencing Advisory Council, No. 193, June 2016, 3.

[42] 'Sentencing Snapshot: Trafficking in a commercial quantity of drugs', Sentencing Advisory Council, No. 194, June 2016, 3.

[43] [2015] VSCA 237 ('Milk').

[44] See [5] above.

[46] The Crown referred to Haddara v The Queen [2016] VSCA 168 [66]-[71].

[47] [2011] VSCA 125.