Taumoefolau v The Queen [2015] VSCA 91

Court of Appeal (Vic)|2015-05-06|Before: Mr J, Osborn JA

DPP v Taumoefolau (Unreported, County Court of Victoria, Judge Gucciardo, 18 August 2014)

CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in a drug of dependence - Sentence of 5 years' imprisonment with a non-parole period of 3.5 years imposed - Whether judge erred in sentencing on the basis that trafficking is no less serious in respect of unsupplied drugs than in respect of those which are actually supplied - No arguable error demonstrated - Application refused.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The applicant seeks leave to appeal with respect to sentences imposed by his Honour Judge Gucciardo, on 18 August 2014, in respect of three charges of trafficking in a drug of dependence and one charge of possess prohibited weapon.

Trafficking in a drug of dependence - Ecstasy [s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 6 years imprisonment with a non-parole period of 4 ½ years.

2 The applicant seeks leave to appeal against the sentence imposed on Charge 2 related to trafficking of methylamphetamine between 1 April 2013 and 12 April 2013. The offending included an initial episode in which it can be inferred the applicant supplied methylamphetamine to a co-accused, Dimitropoulos, in a quantity which is unknown. Dimitropoulos told the applicant in coded messages that he had some work for the applicant and the applicant told Dimitropoulos that he would 'smash it for him'. They met and methylamphetamine was supplied in an unknown quantity. The applicant agreed to break up the drug into samples and subsequently confirmed that this had been done. He arranged to meet Dimitropoulos and, at a meeting at the applicant's home, an outstanding debt was discussed relating to an earlier supply, and a further unknown quantity of methylamphetamine was supplied.

3 Subsequently a series of SMSs were exchanged with Dimitropoulos showing that the applicant ordered six ounces of methylamphetamine from Dimitropoulos and then cancelled the order because another supply had arrived. Dimitropoulos then asked if the applicant still needed the supply of the drug and the applicant agreed to accept this supply on the basis of cash on delivery. Dimitropoulos procured seven ounces and sent an SMS to tell the applicant he was on his way but the applicant was not at home so that transaction was not completed.

4 That same evening there were further messages relating to a six ounce delivery to the applicant at his home. When the applicant was unable to provide money, Dimitropoulos put off the supply. The following day the applicant asked Dimitropoulos for a price for ten ounces and was told it would be $85,000. Four ounces of methylamphetamines were sourced by Dimitropoulos from a third party but the order was cancelled. Two of the four ounces were returned to the third party. The other two were retained. Dimitropoulos told the applicant about the two ounces and again arranged to meet at the applicant's home the following day. After the drug was supplied to the applicant, payment was discussed and the applicant told Dimitropoulos he had $14,000 for a previously outstanding drug debt.

5 The judge characterised the offending as serious and requiring denunciation without hesitation.

There is no doubt that drug trafficking is trafficking in human misery. Such a trade causes enormous costs, measured in human suffering, damage to physical and mental health, the destruction of families, damaged lives, often young lives, and is the cause of much associated or derivative crime in our community. It is a tawdry, evil blight that is central to many of our social ills. While you were not the person selling drugs directly to the public, or the manufacturer, you were a mid-level supplier and dealer, and your responsibility is substantial. On the occasions the transactions about which you were exchanging messages with others fell through, it was your intention and purpose to proceed and procure sale and supply.
Trafficking is no less serious in respect of unsupplied drugs than in respect of those which are actually supplied to ultimate consumers and other traffickers. The potential harm of unsold or unsupplied drug of dependence must be viewed as seriously as the actual harm caused by the sale and distribution of the drug. The seriousness of the trafficking is unaffected by the fact that the drug may not have reached the public. You willingly and knowingly engaged in trafficking for profit. Your motive was greed. You undertook a willing risk and made yourself a partner and link between suppliers, and you closed your mind to the insidious effects of the drug, concerning yourself only with your own real and potential benefit.[1]

7 His Honour's observations were made in the context of the offending in issue. Some of the drugs involved in the trafficking were supplied to another trafficker by the applicant and the ultimate disposition of others was unknown. What was in issue was a complicated course of conduct demonstrating ongoing trafficking - what is commonly called a Giretti[2] count.

The judge erred by sentencing the Applicant on Charge 2 on the basis that:

(a) trafficking is no less serious in respect of unsupplied drugs than in respect of those which are actually supplied to ultimate consumers and other traffickers;

(b) the potential harm of unsold or unsupplied drugs of dependence must be viewed as seriously as the actual harm caused by the sale and distribution of the drugs; and

(c) the seriousness of the trafficking is unaffected by the fact that the drugs may not have reached the public.

9 The definition of 'traffick' under s 70 of the Drugs, Poisons and Controlled Substances Act 1981 is a broad one including -

(a) prepare a drug of dependence for trafficking;

(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence. ...

Each of these activities embraces an incidental step involved in trafficking drugs to the end-user. The definition is a broadly inclusive one, plainly intended to catch, equally, aspects of the prohibited process.

10 The observations of the trial judge reflect the principles stated in DPP v Holder (a pseudonym):[3]

As the Director correctly submitted, trafficking is no less serious merely because some of the drugs trafficked are not in fact distributed to ultimate consumers. The legislative scheme which establishes the offence of trafficking does not distinguish between acts of trafficking on this basis. The potential harm of an unsold or unsupplied drug of dependence is viewed as seriously as the actual harm caused by the sale and distribution of the drug. That is why possession for sale is a species of trafficking. In short, the seriousness of the trafficking is unaffected by the fact that the drugs do not reach the public.[4]

11 To hold that trafficking is no less serious merely because some of the drugs trafficked are not in fact distributed to ultimate consumers is to hold that the fact no ultimate distribution takes place is not, of itself, to be regarded as constituting a lesser offence or a mitigating circumstance. It is not to hold that that question is entirely irrelevant to the sentencing process. Most obviously, it may be an aggravating circumstance eg where supply is made to a particularly vulnerable group or individual.

12 I do not take the statement in Holder[5] or his Honour's observations in the present case to be to the effect that if proof were given of impact upon a particular victim or group of victims, or of injury resulting directly from the offending, those considerations would be irrelevant.[6]

13 If the observations in the present case do go so far, they are, of course, obiter. There was no evidence of such aggravating factors in the present case. Nor would there ordinarily be in respect of charges of this type.

14 The reason that the absence of evidence of actual harm is not itself a mitigatory consideration is that the offence is primarily directed to the potential harm involved in a sequential activity which is potentially difficult to detect and often requires interruption in order to facilitate proof of the offending. In Mokbel v The Queen,[7] Neave JA (with whom Nettle and Tate JJA agreed) applied the following statement of this Court in R v Spaull to which reference has been made in argument:

[The trial judge] was entitled ... to gauge the criminality of the conduct of the applicants not by reference to what they had in fact achieved but rather by the potential consequences of what they had set out to achieve. The fact that their own ineptitude prevented the consequences from inflicting more damage on the intended victims than they had hoped or intended does not, in our view, prevent the sentencing judge from considering the potential of their criminal conduct by reference to their intent when assessing its criminality. The criminality of a person who plants a bomb intending that it should explode in a department store is not to be measured by the fact that his lack of expertise prevented the objective from being achieved. In this regard the judge measures the level of criminality by reference to the potential of the consequences intended by the accused.[8]

15 This principle was again affirmed in Holder[9].

16 Its correctness is confirmed by the fact that the scheme of ss 71-71AC of the Drugs, Poisons and Controlled Substances Act 1981 is to make attempts to traffick equivalent to the offences of trafficking there referred to. This is in contrast to the general scheme adopted in s 321 of the Crimes Act 1958. In Mokbel v The Queen, Neave JA went on to address this specific consideration:[10]

The fact that count 5 involved only an attempt to traffick in a large quantity of a drug of dependence, because a benign substance was substituted for the drug, does not reduce the gravity of the offence. The offence of trafficking covers both the doing of an act which comes within the definition of traffick[11] and an attempt to do such an act[12] and the same maximum penalty applies to both offences. This does not mean that the same sentence should always be imposed for an attempt to traffick, as for a completed trafficking offence. But it supports the Crown's submission that the offence is intended to deal with the potential harm caused by trafficking in illicit drugs. The reason for this approach was explained by Eames JA in R v Mihalo[13] as follows:

this is a category of criminal enterprise where, as in this case, many arrests are made by the employment of undercover law enforcement agents. Parliament might well conclude that in such circumstances the culpability of those who attempt to traffick drugs, but are thwarted in their attempt, may in some cases be no less than that of offenders who succeed in their endeavours to traffick drugs. There is, in other words, nothing illogical in treating attempted trafficking as worthy of the same maximum penalty as applies to a completed offence. The extracts of the Second Reading Speech[14] of the Minister of Health relating to the introduction of the amending legislation in 1983, to which we were referred, demonstrate clearly that it was a deliberate decision to have attempts dealt with in similar fashion to completed offences.[15]

17 In the present case, His Honour was correct to approach the question of the nature and gravity of the offence by reference to the general principles governing the scope and intention of the statutory provision as stated in Holder.[16] His Honour did not attach some notional aggravating factor to the offending which was not made out but focussed on the facts before him.

18 Counsel for the applicant ultimately relied upon a series of New South Wales cases in which it has been held that absence of dissemination of drugs may be regarded as reducing the gravity of the offending.[17] The New South Wales cases do not deal with the clear line of authority in Victoria to which I have referred. Nor do they suggest that in cases such as the present, the distinction relied on by the applicant could result in any material difference in sentence.

19 It was submitted on behalf of the applicant that the decision in the case of Gao and Lim best encapsulated the relevant principle. Latham J, with whom Basten JA agreed, put it this way:

Secondly, the Judge was entitled to find that, because the supply to an undercover operative prevented the drugs from finding their way into the community, the objective gravity of the offences was diminished accordingly, albeit slightly. In R v Chan,[18] Smart AJ (with whom Sheller JA and Studdert J agreed) said:[19]

It is not useful in the sentencing context of the present case to isolate or separate the element of the supplier's profit from the supply. If there be a case where the supply was not for the purpose of profit by the supplier that fact would have to be taken into account. The prevention of the dissemination of drugs into the community is intimately allied with the stern punishment of offenders. Without that, the prevention of supply and dissemination would be impossible of even partial achievement. Stern punishments are necessary, inter alia, because of the substantial profits to be made in supplying prohibited drugs. Suppliers take significant risks and seek to compensate themselves accordingly Underlying the whole drug supply industry and drug supply transactions and the reason they continue so strongly are the large profits to be made. New South Wales has legislation designed to ensure the offenders forfeit the profits which they have made from crime.

In assessing the sentence to be imposed it is relevant to take into account that the prohibited drugs supplied to undercover agents will not be disseminated into the community. Of itself this is usually unlikely to lead to other than a very minor diminution of culpability. The offender had the intention to supply and in supplying knew and believed that the drugs would be likely to find their way into the community. The fact that they did not do so was not due to the offender.[20]

20 Rothman J, who also agreed with Latham J, added 'no principle establishes, as a general proposition, that the fact, simpliciter, that the drugs sold are sold to undercover police and do not, therefore, reach the public diminishes, the culpability of the offending.'[21]

21 In the present case, none of the methylamphetamine was seized and the facts are to be distinguished from those said to give rise to a slight diminution of the gravity of offending in Gao.[22] Some of the drugs were supplied to another trafficker and the dissemination of others is unknown. In my view, the consideration agitated on behalf of the applicant could not sensibly result in a reduction of sentence in this case, even if the statements of principle which he challenges were regarded in some way as being incorrect or incomplete.

22 In my view it is not reasonably arguable that his Honour's sentencing remarks demonstrate error in the sentence for Charge 2.

[1] DPP v Taumoefolau (Unreported, County Court of Victoria, Judge Gucciardo, 18 August 2014), [13]-[14].

[3] [2014] VSCA 61 [25] (citation in original) ('Holder').

[4] See, eg, Chandler v The Queen [2010] VSCA 338 [25]; Mokbel v The Queen [2011] VSCA 34; (2011) 211 A Crim R 37, 45-47 [37]-[43].

[6] See s 5(2)(daa) and (db) of the Sentencing Act 1991.

[8] [1999] VSCA 18 [11] (Winneke P, Brooking and Ormiston JJA) cited in Mokbel v The Queen [2011] VSCA 34; (2011) 211 A Crim R 37, 46-7 [41] (emphasis of Neave JA).

[10] [2011] VSCA 34; (2011) 211 A Crim R 37, 47 [43] (citations in original; emphasis in original).

[13] R v Mihalo [2002] VSCA 217; (2002) 136 A Crim R 588. One of the issues in Mihalo was whether the maximum penalty for attempted trafficking of a drug of dependence was determined by the relevant provisions of the Drugs, Poisons and Controlled Substances Act 1981 or Crimes Act 1958.

[14] Victoria, Parliamentary Debates, Legislative Assembly, 21 September 1983, 794 (Thomas Roper, Minister of Health).

[15] R v Mihalo [2002] VSCA 217; (2002) 136 A Crim R 588, 596 (Phillips CJ and Chernov JA agreeing).

[17] Fahs v Regina [2007] NSWCCA 26; Ly v R [2008] NSWCCA 262; R v Gao; R v Lim; Lim v R [2007] NSWCCA 343; R v DW [2012] NSWCCA 66.

[20] R v Peng Gao; R v Benjamin Lim; Benjamin Lim v R [2007] NSWCCA 343 [21]. See also R v Truong [2006] NSWCCA 318.

Poisons and Controlled Substances Act 1981

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