Vasic v The Queen [2010] VSCA 89

3 On 13 August 2009, the applicant, Alexander Vasic, pleaded guilty before the County Court to one count of trafficking between 17 January 2005 and 27 July 2005 in a drug of dependence, namely 3,4 - Methylenedioxy-N-methylamphetamine (MDMA), in a quantity not less than a large commercial quantity applicable to that drug and one count of trafficking on 27 July 2005 in a drug of dependence namely methylamphetamine on presentment No CO504703-6 ('the first presentment'). On the same day he also pleaded guilty to one count of trafficking between 18 July 2007 and 26 March 2008 in a drug of dependence, namely cocaine, in a quantity not less than a large commercial quantity applicable to that drug on presentment No X03393578 ('the second presentment').

4 After hearing a plea in mitigation of penalty the learned judge sentenced the applicant, on 14 August 2009, to nine years' imprisonment on count 1 and two years' imprisonment on count 2 on the first presentment, and to 12 years' imprisonment on count 1 on the second presentment. His Honour ordered that two years of the sentence of imprisonment on the first presentment be served cumulatively upon the sentence on the second presentment, making a total effective sentence of 14 years. A non-parole period of nine years was ordered to be served.

5 The maximum penalty for trafficking in a drug of dependence in a large commercial quantity is life imprisonment.[1] The maximum penalty for trafficking in

a drug of dependence is imprisonment for 15 years.[2]

6 Pursuant to s 6AAA of the Sentencing Act 1991, his Honour stated that had the applicant not pleaded guilty he would have imposed a total effective sentence on both presentments of 18 years' imprisonment with a minimum period of 12 years.

7 The applicant seeks leave to appeal against that sentence on three grounds:

1. The learned sentencing judge failed to accord any, or sufficient, weight to the Applicant's plea of Guilty to the one offence the subject of the one count specified on Presentment No. X03393573, the time at which the Applicant pleaded Guilty to that one offence and the consequences of same.
2. The sentence imposed (12 years' imprisonment) on the one count specified on Presentment No. X03393573 is, in all the circumstances of the case, manifestly excessive.
3. The Total Effective Sentence imposed (14 years' imprisonment) and the non-parole period fixed (9 years) are, in all circumstances of the case, manifestly excessive.

8 It will be noted that the applicant made no complaint concerning the two individual sentences imposed on the first presentment.

9 Mr Vasic was aged between 25 and 28 years at the time of the offending and 29 years at the time of sentence. He was married with three young children. After completing year 11 at school, Mr Vasic had obtained employment in labouring and general factory work for a number of years. At about the age of 20 he qualified as a security guard and started working at nightclubs. It was said on the plea that this led him into coming into contact with the wrong sort of people. He began taking drugs. This developed into use of cocaine at a cost of between $12,000 and $16,000 per month. Eventually, his wife threw him out of the house in 2004 or early 2005.

10 As a result of a police operation in early 2005, Mr Vasic was identified as being a major supplier of MDMA in the form of ecstasy tablets to a George Cancer. In his reasons for sentence, the learned judge gave some examples of the quantity and frequency of their trafficking, based on the Crown's opening which was drawn mainly from legally intercepted telephone conversations. On 22 March 2005, in a telephone conversation, Mr Vasic and Mr Cancer talked about the sale of packages of some 2,500 ecstasy tablets. On the next day, in another telephone conversation, Mr Vasic told Mr Cancer that he would have 40,000 ecstasy tablets by Friday. Later that night Mr Vasic telephoned Mr Cancer and asked him whether he could get together $100,000 in one hour. Mr Cancer replied that he would call Mr Vasic as soon as he had the money. On 7 April 2005, the two discussed by telephone the price of ecstasy tablets. That evening, Mr Vasic telephoned Mr Cancer and informed him that the best price his supplier would sell the tablets for was $150,000 for 10,000 tablets and Mr Cancer agreed to purchase the tablets at that price. There were other examples mentioned by his Honour. One was a telephone conversation on 26 May 2005 in which Mr Vasic and Mr Cancer discussed making money and the latter mentioned $60,000. Another was the order of 5,000 ecstasy tablets by Mr Cancer on 7 June 2005 which Mr Vasic delivered later that night. Two days later Mr Vasic telephoned Mr Cancer and told him that the payment was $5,000 short as Mr Vasic had only received $40,000.

11 His Honour concluded that this material disclosed drug trafficking by Mr Vasic of substantial quantities of ecstasy with such a frequency that it could clearly be said that Mr Vasic was in the business of trafficking in the terms and manner as defined in R v Giretti.[3] His Honour noted that, whilst the Crown had been unable to precisely quantify the amount of ecstasy trafficked by Mr Vasic, it had been agreed by the parties that 'the quantity was such that [it] placed the accused in the mid level range of trafficking of [a] large commercial quantity of such drug'.

12 Mr Vasic was arrested on 28 July 2005. As a result of a search of the premises at which he was living, 17.8 grams of methylamphetamine were located. This was the subject of count 2 on the first presentment. The amount seized was in excess of the traffickable quantity specified in the Drugs, Poisons and Controlled Substances Act 1991 and the Crown alleged that this substance was in Mr Vasic's possession for the purposes of sale.

13 Mr Vasic was bailed after 12 days in custody. He moved back to his matrimonial home. Initially he was subject to a curfew which required him to stay at home after 9.00 pm. From August 2005 to November 2005 he attended courses at Lamberti Associates. He started work as a truck driver.

14 Some time in 2007 Mr Vasic's bail conditions were varied and the curfew was lifted. That allowed him to start visiting nightclubs again, which he stupidly did. He met and started dealing in cocaine with a Tan Arslan. They supplied each other. A police operation in New South Wales led to a police operation in Victoria, which eventually resulted in 16 offenders being apprehended. Although Mr Arslan was arrested in March 2008, Mr Vasic was not arrested until 27 November 2008 because he had been using a false name. He was again bailed after 12 days. He then remained out of trouble in the intervening period before his sentencing.

15 In his reasons for sentence, the learned judge gave some examples of the quantity and frequency of this second episode of the trafficking, again based on the Crown's opening which was drawn mainly from about 40,000 legally intercepted telephone calls, of which approximately 20,000 were of evidentiary value. On 18 July 2007, Mr Arslan offered Mr Vasic some three ounces of cocaine for $6,000 per ounce, such having a purity of 50 per cent. On 7 September 2007, Mr Vasic told Mr Arslan that he had not been able to get any cocaine for them. Mr Arslan indicated that he would get some but only seven grams. Mr Vasic said he needed 'heaps' as it had never been like this before. On 22 January 2008, Mr Arslan offered Mr Vasic three ounces of uncut cocaine at a cost which, after some discussion, was agreed at $10,000 per ounce. On 26 March 2008 there was further discussion between Mr Vasic and Mr Arslan concerning uncut cocaine. Mr Vasic wanted a price for ten ounces with cash up front and was offered by Mr Arslan ten ounces at $10,000 per ounce.

16 His Honour again noted that, although the Crown could not precisely quantify the amount of cocaine trafficked by the accused, it had been agreed by the parties that the quantity was in excess of one kilogram, therefore making it a large commercial quantity within the meaning of the Act. This meant that the volume involved was 'at the lower end'.

17 Mr Vasic's only prior convictions, which his Honour did not regard as relevant, were a large number of counts of attempting to, and obtaining, a financial advantage by deception and one count of perverting the course of justice. In December 2001, Mr Vasic had been sentenced in part to a total effective sentence of two years and nine months' imprisonment, wholly suspended for a period of three years.

18 His Honour's general approach to the sentencing of Mr Vasic was that:

Over many years in cases such as R v Pantsis,[4] the courts have emphasised that one of the roles of the courts is to demonstrate to the community at large by reference to the principles of deterrence that if people traffic in prohibited drugs, then the consequences will be dire. ...

In R v S,[5] the Court of Appeal noted that the seriousness with which such crimes are viewed by Parliament ... could be gauged by the fact that the maximum penalty imposed by way of life imprisonment is the same sentences reserved for the most heinous in the criminal hierarchy.

He also noted that, as discussed in R v Pidoto and O'Dea,[6] the sentencing structure for drug offences now prescribed by Parliament has:

adopted a hierarchy of seriousness defined by, and only, the quantity of the drug of dependence which has been trafficked.

19 With respect to the first presentment offences, his Honour held that Mr Vasic was not similar to Mr Cancer by way of culpability but 'a step above him in the chain'. He also took into account the four year delay in sentencing but:

tempered it moderately because of the reality that rehabilitation had not been effected and not only was that not so but unfortunately Mr Vasic chose to commit, while on bail, a similar serious offence.

20 With respect to the second presentment offence, his Honour stated that:

It is obvious from the materials that I have referred to not only that both Arslan and Vasic were mutual suppliers in such transactions, but both the quantity and the quality were high, the quality being uncut and of high level. ...

I have already pointed out as to the second presentment, Arslan and Vasic were mutual suppliers of cocaine and were both mutually close to sources of which we have no knowledge.

He also noted that Mr Vasic came to be sentenced as a serious drug offender and that he had the aggravating factor of 'having committed such a grave offence while being on bail'.

21 These two grounds were dealt with together in the written outline of submissions by counsel for the applicant. It was first submitted on behalf of the applicant that he had pleaded guilty to the one count on the second presentment at the very first opportunity available to him. He had thereby facilitated the course of justice. The plea was so early that the other co-offenders were still awaiting the listing or hearing of committal proceedings in the Magistrates' Court. As a result, it was submitted, the applicant was entitled to a substantial discount in sentence. The discount must be 'real and not illusory'. Yet, insufficient weight had been accorded the applicant's plea of guilty and the time at which it had been made.

22 Secondly, it was submitted that in circumstances where trafficking offences are classified by the quantity of the prohibited drug, a sentence of 12 years' imprisonment for a lower end trafficking in a large commercial quantity of one drug was outside the range of sentences which might reasonably have been imposed for such an offence. This was particularly the case where a sentence of nine years' imprisonment had been imposed, on the first presentment, for a mid-level trafficking in a large commercial quantity of another drug.

23 For both reasons, it was submitted, the sentence of 12 years' imprisonment should be set aside because it was manifestly excessive.

24 Counsel for the respondent submitted that whilst the early guilty plea warranted a discount, there was no fixed discount applicable and it must vary with the circumstances of each case. Here, where the plea was to a very serious offence committed while on bail for another very serious offence, the discount was limited to the utilitarian value of the plea. There could be no added benefit on account of remorse or rehabilitation, where the offence was brazenly committed over a period of nine months when on bail. Counsel also submitted that whether or not there had been too little weight given to the early plea could only be determined when considering manifest excess. It was not a stand alone point.

25 With respect to the manifest excess ground, counsel for the respondent accepted that, at first blush it seemed unusual that a higher sentence could be imposed on the second presentment, when the quantity in that offence was at the lower end of a large commercial quantity, compared to the large commercial trafficking offence on the first presentment where the quantity was in the mid level range. He submitted, however, that on further analysis the difference was justified, and the sentence was within range. Counsel pointed to the following factors which led his Honour to impose the higher sentence - the offence was committed while the applicant was on bail for similar offences; the applicant was to be sentenced as a serious drug offender; the offence was part of a large operation where both the quantity and quality of the cocaine was high and there were indications that the applicant was close to the source; and the effects of delay needed to be tempered in considering the sentence for the offences on the first presentment. Counsel further submitted that the quantity of drugs, whilst a highly relevant factor, was not the only one to be considered in synthesising the appropriate sentence.

26 Counsel for the applicant submitted in reply that Mr Vasic's role in the offending the subject of the second presentment was already taken into account by the agreed description that the volume of cocaine involved in the offence was at the lower level.

27 I am not persuaded that there is any merit in either ground 1 or ground 2. First, his Honour did give a significant discount for the pleas of guilty. As counsel for the respondent submitted, the discount for pleading guilty to the one count on the second presentment was limited to the utilitarian value of the plea. Whilst exceptionally early, the plea was not accompanied by remorse or rehabilitation. Secondly, as submitted by counsel for the respondent, I consider that there were two important considerations which played an important part in his Honour's sentencing. The first was that the charge in question was a second drug offence to which cl 4 of Schedule 1 of the Sentencing Act 1991 applied, so that the applicant fell to be sentenced as a serious drug offender.[7] As his Honour said, s 6D(a) of the Sentencing Act directed that 'the protection of the community must now be the primary purpose of any sentence'. However, his Honour declined to pass a larger sentence than that which was proportional to the gravity of the offence, as could have been done under s 6D(b) of the Sentencing Act. Further, unless the Court directed otherwise, the term of imprisonment imposed for this offence on Mr Vasic as a serious drug offender had to be served cumulatively on the other sentences.[8] It seems to me that in making his intuitive synthesis his Honour would have taken into account that the applicant was being sentenced as a serious drug offender. The second consideration was that the offence in question was committed whilst the applicant was on bail. This was a very serious element of aggravation and his Honour regarded it as such. I consider that both of these considerations mean that the sentence of 12 years was within range.

28 Therefore, these two grounds of appeal must fail.

29 The contention by counsel for the applicant in respect of this ground was limited to the submission that if the individual sentence imposed on the second presentment was manifestly excessive, the total effective sentence of 14 years' imprisonment was also manifestly excessive and must be set aside. A lesser sentence should be imposed. It was also submitted that the non-parole period should be set aside and a lesser period fixed.

30 Counsel for the respondent submitted that, as the two presentments involved brazen drug trafficking in two different drugs, over two distinct and unconnected periods of time, both in large commercial quantities, with one involving the commission of a serious drug offence, significant cumulation was warranted. He submitted that the addition of two years was clearly modest given the scale of offending. The total effective sentence of 14 years was within range, as was the non-parole period of nine years.

31 Given that the premise, on which the submission by the applicant's counsel was based, did not materialise, this ground of appeal must also fail. In any event, I agree with the above submissions by counsel for the respondent.

32 The application for leave to appeal should be refused.

[1] Drugs, Poisons and Controlled Substances Act 1981, s 71.

[2] Drugs, Poisons and Controlled Substances Act 1981, s 73AC.

[3] (1986) 24 A Crim R 112.

[4] [1998] VSCA 134.

[5] [2006] VSCA 134.

[6] [2006] VSCA 185; (2006) 14 VR 269.

[7] Sentencing Act 1991, s 6B(1).

[8] Sentencing Act 1991, s 6E.