Court of Appeal (Vic)|2012-06-29|Before: Mr P, Maxwell P, Weinberg JA

Wilson v The Queen; DPP v Sassine; DPP v Kalakias; Wilson v The Queen [2012] VSCA 141 (29 June 2012)

DPP (Vic) v Kalakias, S Wilson & Ors (Unreported, County Court of Victoria, Judge Lawson, 5 November 2010)

DPP (Vic) v Sassine (Unreported, County Court of Victoria, Judge Lawson, 16 December 2010)

CRIMINAL LAW - Appeal - Sentence - Manufacturing and trafficking of MDMA, methylamphetamine and cocaine - Counts of trafficking in large commercial quantity and commercial quantity - Possess drug of dependence - Possess pill press - Handle stolen goods - Co-offenders - Two offender appeals - Whether sentences manifestly excessive - Two Crown appeals - Whether sentences manifestly inadequate - Objective gravity - General deterrence - Trafficking sentences 'extraordinarily lenient' - Parity - Constraints imposed on resentencing by unappealed sentence - Procedural fairness - Verdins principles applicable - Appeals allowed - Offenders resentenced - Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71, 71AA, 71AC, 71A, 71C, 73(1).

1 In 2007, Victoria Police commenced an investigation into the manufacturing and trafficking of MDMA ('ecstasy') and methylamphetamine, and the trafficking of cocaine, in Melbourne's northern suburbs. That investigation resulted in the arrest, conviction and sentencing of a large number of individuals.

2 These appeals concern the sentences imposed on four of those involved. In two cases, the offender seeks leave to appeal against sentence; in the other two, the Director has appealed against the inadequacy of the sentence. For reasons which follow, we have concluded that each of the applications should be granted and each of the Director's appeals should succeed. Annexure A to these reasons is a table which sets out, for each of the four individuals, both the original sentence and the resentencing which we propose.

3 Before we deal with the grounds of appeal in each of the separate appeals, it is necessary to set out a summary of the offending. This summary is taken from the Crown opening, which was the basis of the sentencing in each case. (For ease of reference, we will refer to the offenders by their initials. The charges related in each case to the period 20 December 2007 - 3 April 2008, which we will refer to as 'the relevant period'.)

4 Investigating police obtained warrants to intercept telephone services in relation to mobile phones used by SW and SK. Numerous calls were recorded during the relevant period in which coded language was used to discuss the supply of cocaine, methylamphetamine and MDMA. SW and SK discussed amounts of drugs available, transactions which had occurred or were to take place, prices of various drugs and the frequently substantial amounts of money paid or payable by various persons.

5 The investigation established that RS was supplying SW with large quantities of MDMA tablets. The MDMA tablets which SW obtained from RS were then distributed through associates.

6 On one occasion in February 2008, SW sought to obtain from RS, at the request of another, 50,000 MDMA tablets at $9 each, for which SW said he would pay cash. RS agreed to sell that quantity to SW. As the sentencing judge noted, ecstasy tablets usually weigh around 0.25 to 0.3 grams. On that basis, this single agreement between SW and RS involved an amount of approximately 10-15 kilograms of MDMA. The large commercial quantity specified in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) for a mixed substance containing MDMA is one kilogram. This single transaction therefore involved many multiples of a large commercial quantity.

7 SK and SW manufactured a large quantity of MDMA tablets at the premises of VW, who is SW's aunt on his mother's side.

8 As appears from Annexure A, SW was sentenced on four separate counts to which he had pleaded guilty, as follows:

traffick a large commercial quantity of MDMA: 7 years;
traffick a commercial quantity of methylamphetamine: 4 years;
handle stolen goods: 2 years; and
possess drug of dependence (not for trafficking): 1 month.

9 The ground of appeal is that the sentence imposed was manifestly excessive. This is said to be so because -

(a) although there is no challenge to the individual sentences for trafficking, the cumulation of 2 years of the sentence imposed for trafficking methylamphetamine (being 50 per cent of the head sentence) was manifestly excessive; and/or

(b) the sentence of 2 years imposed for handling stolen goods was manifestly excessive; or

10 We deal first with the issue of cumulation as between the trafficking counts. The appeal submission for SW conceded that it was appropriate that there be some cumulation as between the trafficking counts, but contended that the cumulation of 2 years of the sentence on the methylamphetamine count had resulted in a 'crushing sentence'. According to the submission

the presumption of concurrency should have run much further in this case in light of the interrelationship in the commission of the trafficking offences, which were committed alongside one another.

11 According to the Crown opening, SW and SK were engaged in the business of trafficking methylamphetamine in the relevant period. The quantity alleged to have been trafficked was greater than the applicable commercial quantity (500 grams) but the prosecution were not able to clarify the amounts trafficked with any greater degree of particularity 'given the use by the participants of codes designed to conceal the nature of the discussions.'

12 SW organised the manufacture of unknown quantities of methylamphetamine at two clandestine laboratories. One was at his home address and the other was in the garage of the home of a co-offender. On searching each of these premises in April 2008, Victoria Police located scientific equipment, precursor chemicals and other items for the manufacture of methylamphetamine.

13 Plainly enough, the trafficking in methylamphetamine was very serious offending in its own right. The maximum penalty for trafficking a commercial quantity of a drug of dependence is 25 years. The sentence of 4 years imposed on SW for that offence was extremely lenient, in our view. The judge was right to regard it as necessary to cumulate a portion of the sentence on this count. As her Honour said, the offences were discrete and they related to different drugs of dependence.

14 In our view, it was well within the scope of her Honour's discretion to cumulate 2 years of the 4 year sentence on this count on the 7 years imposed for trafficking a large commercial quantity of MDMA. The effect of the cumulation was a total sentence of 9 years. There is no basis for contending that this was disproportionate to the total criminality involved, and certainly no basis for the submission that the amount of cumulation led to a sentence that was, in any meaningful sense, 'crushing'. The 7 year sentence for the MDMA offence, which carried a maximum of life imprisonment, was itself extraordinarily lenient in our view.

15 On the other hand, the sentence of 2 years imposed for handling stolen goods cannot be maintained. The charge related to a Westinghouse refrigerator and two Fisher and Paykel washing machines. As Coghlan AJA pointed out in the hearing, it was at the low end of seriousness. The Director's submission properly conceded that the sentence of 2 years was manifestly excessive, although the Director maintained that the cumulation of six months was modest.

16 We would set aside the sentence on that count and impose instead a sentence of 6 months' imprisonment, of which 3 months should be served cumulatively on the sentences imposed for the other offences. As appears from Annexure A, the reduced cumulation on this count has the effect that SW's total effective sentence is reduced by 3 months, to 9 years and 3 months. We are not, however, persuaded that there should be any change to the non-parole period, which will remain at 7 years. Given the gravity of SW's offending, it is already a very low non-parole period. It is the minimum which justice requires be served, in our view.

17 As noted earlier, during the relevant period RS and SW were engaged in the business of trafficking MDMA tablets in not less than a large commercial quantity. RS supplied 'tens of thousands of tablets' to SW, who then distributed them through other associates. Reference was also made earlier to the transaction in February 2008 when SW sought to obtain from RS 50,000 tablets. Up to 3 April 2008, more than 30,000 MDMA tablets had been provided by RS to SW and then distributed. RS was sentenced to 6 years' imprisonment on the count of trafficking a large commercial quantity of MDMA and to 6 months on a count of possession (not for trafficking).

18 As the sentencing judge noted, RS had two 'highly relevant' prior convictions for drug related matters. In May 2003, he had been convicted of trafficking in MDMA, for which he received a community-based order for a period of 12 months. Later that same year, he was convicted of trafficking in methylamphetamine, for which he was sentenced to a term of imprisonment of 12 months, of which he had served 19 days. The balance was suspended for a period of 2 years, which expired in late 2005.

19 The Director's submission was that this was a serious example of trafficking in not less than a large commercial quantity, an offence punishable by life imprisonment. The sentencing judge described RS's role as follows:

Your role in this offending was serious. You played a major role in trafficking a large commercial quantity of ecstasy over the period alleged for personal gain in which sums of money changing hands were substantial.

[Defence counsel] conceded that you were an active participant and a regular player as demonstrated in the various telephone intercept material. At the time you were using amphetamines heavily and were spending a lot of money supporting your habit. It is not possible to precisely quantify the profit in respect to your activities. However it's conceded a large amount of money passed through your hands by reason of your involvement in this drug trafficking operation.

[Defence counsel] relied on the fact that there was no evidence of enrichment and at the time of your arrest, I note that you were living with your parents and had little by way of assets.[1]

20 The submission for RS identified a number of mitigating factors which the judge had been required to take into account, as follows:

(a) he had pleaded guilty, which not only had significant utilitarian benefit but was accepted by the judge as an indication of some remorse;

(b) there had been a delay of two and a half years between the date of his arrest and the date of sentence;

(d) a clinical psychologist had diagnosed RS as having a 'chronic adjustment disorder with mixed disturbance of emotions and conduct'; and

(e) RS was the carer for his ill father and the judge took into account his 'anguish' at not being able to care for his father, as being an additional factor which would make gaol more burdensome for him than otherwise.

21 These were all relevant considerations but, in offending of this kind, primacy must almost always be given to considerations of general and specific deterrence, protection of the community and denunciation of the anti-social behaviour. So far as the drug addiction was concerned, the fact that RS had relapsed and was trafficking - in part - to feed his habit reflected poorly on his prospects for rehabilitation and could not have reduced his moral culpability.[2]

22 The judge also took into account that, in the two months between his remand in custody and the date of the sentencing, RS had been held under a 'very restrictive regime'. Initially he had been kept in his cell for 23 out of every 24 hours. Shortly before sentence, this had been changed to permit RS to have two 2 hour breaks out of his cell each day. He had been unable to communicate with any other prisoners, had limited contact visits and was restricted from being able to work or undertake educational rehabilitations programs.

23 Evidence was given on the plea as to the likelihood of his classification as a maximum security prisoner changing following sentence. Her Honour concluded that it was unlikely that his classification would change and that there was a 'substantial prospect' that RS would remain in protection until he was released. As a result, her Honour said, his circumstances of detention would be 'significantly more burdensome' than those for mainstream prisoners.[3]

24 In an affidavit filed in connection with the Director's appeal, the solicitor for RS stated that the restrictive regime had continued for another eight months after RS was sentenced, until August 2011. Thereafter, RS had been transferred to Marngoneet Correctional Centre at Lara. There, according to the affidavit, RS was having 'great difficulty in communicating with other people', a difficulty which he perceived to be a direct result of his having been previously incarcerated in a high security facility.

25 Notwithstanding these mitigating factors, the sentence of 6 years for trafficking in a large commercial quantity of MDMA was manifestly inadequate, in our view. That is, it was outside the range reasonably open to the judge in the circumstances of the case.[4]

26 Trafficking in a large commercial quantity is an offence of the utmost seriousness, as the maximum of life imprisonment unequivocally demonstrates. As counsel for the Director contended on the appeal, this was deliberate and sustained offending, in very large quantities, for profit. It was just the kind of offending to which the quantity-based sentencing regime is directed.[5] Given that RS had two prior convictions for drug trafficking, considerations of specific deterrence were of importance.

27 As counsel for RS correctly submitted, however, any resentencing must take into account the requirements of appropriate relativity between him and SW, who pleaded guilty to the same offence and whose sentence of 7 years has not been appealed. We consider that RS should be resentenced to 8 years on this count.

28 According to the Crown summary, SK supplied SW and others with large quantities of MDMA, amphetamines and cocaine in the relevant period. He was a regular distributor for a particular supplier of these drugs. The Crown conceded that, during the period of the investigation, SK 'obtained small quantities of these drugs for his own use from some of the other accused.' It was separately alleged that SK and SW had manufactured a large quantity of MDMA tablets at VW's premises.

29 SK was sentenced on three separate trafficking counts, as follows: MDMA (commercial quantity), methylamphetamine (commercial quantity) and cocaine. The Crown case against SK was that, like SW, he had been in the business of trafficking both MDMA and methylamphetamine. The commercial quantity counts were both laid on a Giretti basis.

30 On the plea, defence counsel accepted that there was a commercial element to SK's trafficking, but noted that the prosecution had been unable to quantify the precise quantity trafficked. Counsel submitted that the sentencing judge should view his activities as 'being at the bottom end of the range for commercial quantity'. Her Honour's conclusion was as follows:

Having considered the intercept material and in particular the numerous discussions you held with SW and [a co-offender], I find that you were an integral part of the supply and on-selling of the drugs and that your role can be characterised as a mid-level to high level dealer/supplier.[6]

31 The sentences imposed on the commercial quantity counts (3 years in each case) and the sentence of 2 years on the other trafficking count were all said to be manifestly inadequate

considering the respective maximum penalties for this offending and the need for general and specific deterrence.

Counsel for the Director pointed out that the sentence of 3 years imposed on SK for trafficking in a commercial quantity of methylamphetamine was a year less than that imposed on SW, and was the same as that imposed on VW, for the same offence. Counsel contended that there was no reasonable justification for these sentencing relativities. It was pointed out that SK had 17 convictions from five court appearances and had committed these offences in part during the currency of a wholly suspended term of imprisonment.

32 Counsel for SK responded that there were clear reasons for the sentencing differential between SW and SK. In particular, he submitted, it was SW who had organised the two clandestine laboratories. SK was, by comparison, 'a mere go-between'. His youth (21 at the time of the offending) was another ground of distinction between him and SW. Moreover, counsel submitted, SK did not really 'profit' from the trafficking in that any money he made from these activities went in to feeding his own drug habit or paying for reconstructive surgery which his then girlfriend insisted on having.

33 In our view, the sentences of 3 years on each of the commercial quantity counts were manifestly inadequate. This was very serious offending indeed. SK was in the business of trafficking two different drugs, each in a commercial quantity. He was a 'mid-level to high-level dealer/supplier', as the judge found. He was trafficking for profit. The fact that he used the profits to satisfy his own needs and those of his girlfriend does not alter that conclusion. It was a commercial operation, as his counsel conceded on the plea.

34 Parliament having fixed a maximum of 25 years for offending on this scale, a sentence of 3 years seems extraordinarily lenient. In each case, the sentence should be increased to 4 years. Were it not for the constraints of parity which flow from the unappealed sentence of 4 years imposed on SW for the same offence, we would have imposed higher sentences on these counts.

35 Counsel for SK contended that it was not open to the Director, on this appeal, to rely on the fact that SK had breached a suspended sentence. As noted earlier, the relevant period during which SK was committing these trafficking offences commenced while he was serving a suspended sentence. It was said that the point had not been taken by the prosecutor on the plea.

36 We reject this submission. As counsel for the Director correctly pointed out, this was a matter which was known to the defence and which was of obvious relevance to the sentencing task, both at first instance and on appeal. The risk that it would be taken into account was 'necessarily inherent in the issues to be decided'.[7] No notice was therefore required. It may be thought surprising that no express reference was made on the plea, or in the sentencing remarks, to SK's having breached a suspended sentence, but that in no way prevents the Crown from relying on it on the appeal. Its relevance, of course, is that it emphasises the need for specific deterrence to be taken into account in the sentencing of SK.

37 As appears from Annexure A, the effect of the cumulation we will order is that the total effective sentence for SK will be 7 years. We will fix a non-parole period of 5 years.

38 As appears from Annexure A, VW pleaded guilty to one count of trafficking in a commercial quantity of MDMA and one count of trafficking in a commercial quantity of methylamphetamine. Each of those offences carries a maximum penalty of 25 years' imprisonment. VW was sentenced on the basis of the Crown opening, which described the offending as follows.

39 In relation to the MDMA count, the Crown case was that SW was engaged in the manufacture and distribution of large quantities of MDMA tablets, using a pill press which was located at VW's home. During the search of her home, police located a broken pill press, logo stamps, numerous tablets containing MDMA, and two buckets which included approximately eight kilograms of substances containing MDMA. This was the residue of a process of manufacturing and pressing MDMA tablets (using the broken press and the logo stamps) that had taken place at VW's home. The total weight of the tablets containing MDMA located at her house was 714 grams.

40 The Crown case was that VW had aided and abetted SW in trafficking MDMA, by acquiescing in the use of her premises by him for the storage of MDMA and items related to the preparation of MDMA for sale, and by assisting in the preparation of MDMA tablets for sale by bagging tablets obtained by SW. It was further alleged that VW had acted on occasion as a conduit of drugs sold by SW to third parties and that she was aware that SW's trafficking was of a commercial nature, that is, that the quantity trafficked was a commercial quantity. The Crown accepted, however, that VW was not aware of every transaction conducted by SW nor of the amount or weight of MDMA sold by SW or stored at her premises. The prosecution could not establish that VW had possessed any MDMA for sale other than in her capacity of assisting SW.

41 In relation to the methylamphetamine count, the Crown case once again was that VW had aided and abetted SW's trafficking. The bucket located at her address contained 4.2 kilograms of substances containing methylamphetamine. The allegations against VW were similar to those concerning the MDMA trafficking, that is, that she had acquiesced in the use of her premises by SW for the manufacture of methylamphetamine; had assisted in the preparation of methylamphetamine for sale by dividing and bagging it into smaller quantities for sale; had proffered advice as to how to prepare the methylamphetamine; and had acquiesced in the use of her premises for the storage of items arising from the manufacture of methylamphetamine. VW knew that SW's trafficking in methylamphetamine was of a commercial nature, but it was not contended that she was aware of every transaction conducted by him or of the amount or weights of methylamphetamine sold by him or stored at her premises. The prosecution was not in a position to establish that VW had been engaged in the manufacture of methylamphetamine.

42 The first ground of appeal was manifest excess. Specifically, it was contended that the sentences on the trafficking counts (3 years in each case), and the amount of cumulation ordered on the methylamphetamine count (1 year), were manifestly excessive. The appeal submission relied in particular on the findings of the sentencing judge that VW:

(a) had no prior or subsequent convictions or appearances;

(b) had entered pleas of guilty as early as feasible in the circumstances of the case;

(c) had had these matters 'weighing heavily on her mind' during the delay of some 2 years and 7 months between the date of her arrest and the sentencing hearing;

(e) suffered from impaired mental functioning, such that propositions 1, 3, 4 and 5 from R v Verdins[8] were enlivened.

43 As to the Verdins propositions, the judge was satisfied that VW's past history of major depression, anxiety and panic disorder, with the possibility of an acquired brain injury, did combine to affect her judgment to an extent. The judge went on, however, to say:

I consider that you were a willing participant who was fully aware of what you were doing and that is reflected in the content of the various telephone intercept material that is referred to in the Crown opening.

...

I accept the prosecution's submission that your participation in this criminal activity did show a willingness to lend active assistance to SW in a number of ways that have been articulated. You assisted him in the operation of his commercial activities in relation to the distribution of the drugs, MDMA and methylamphetamine, both of which drugs are significantly harmful.[9]

The judge accepted that there was a need to moderate both general and specific deterrence but considered that neither was eliminated as a sentencing consideration. Likewise VW's condition did reduce to some extent her moral culpability.

44 We are not persuaded that the sentences imposed on the trafficking counts, or the cumulation ordered, were outside the range reasonably available to the judge. These were very serious offences and, notwithstanding the mitigating factors which her Honour properly took into account, they called for appropriately stern sentences. As the prosecutor correctly submitted on the plea, VW was a knowing and willing participant in a business enterprise which involved a commercial quantity of each of two drugs of dependence. As noted earlier, VW assisted SW in conducting that enterprise in a variety of different and important ways.

45 The appeal submission for VW placed some emphasis on the importance to her of her relationship with her family, in particular her nephew SW. Against the background of her difficult personal life, this was said to mitigate the culpability of her active involvement in SW's trafficking. We disagree. Such emotional dependence as there might have been cannot, in our view, lessen the gravity of VW's knowing involvement in criminal activity on this scale. As the prosecutor submitted on the plea, VW made a free choice to be involved.

46 Nor, in our view, do considerations of parity require any reduction in VW's sentence. As regards SW, the sentence imposed on him for the same offence was one-third higher than the sentence imposed on VW. Given the extraordinarily low sentence imposed on SW, that differential was both necessary and sufficient in the circumstances. Exactly the same will now be true of the relativity between VW and SK, who will be resentenced to 4 years on the methylamphetamine trafficking count for reasons given earlier. That sentencing differential is both necessary and sufficient in the circumstances. The sentencing of the co-offender, Liam Turner, to 2 years and 6 months' imprisonment for trafficking simpliciter raises no parity issue.

47 Separate appeal grounds were advanced in relation to the count of possessing a pill press, on which VW was sentenced to 1 year's imprisonment (of which 6 months was cumulated). It was said that the sentence on this count constituted double punishment in light of the offending which constituted the offence of trafficking in a commercial quantity of MDMA.

48 We disagree. The act of being in possession of equipment which is essential to the conversion of MDMA into saleable pill form was separate and distinct from the various activities, set out above, which VW undertook in assisting SW to carry on his business of trafficking. Nor is there any reason to think that the sentence of 1 year was outside the range. The same sentence was imposed on the co-offender, Liam Turner, for the same offence. VW raised a parity ground in relation to the fact that Turner's sentence - for this and the trafficking offence - was wholly suspended. There is nothing in that point. Turner's position was quite different, for the reasons fully set out by the sentencing judge.[10]

49 On the other hand, we agree with the concession made by counsel for the Director, that it was not reasonably open to the judge in the circumstances of the case to cumulate 6 months of that sentence on the sentences imposed for trafficking. As the Director accepted, the sentence on the pill press count should be fully concurrent.

50 That has the effect of reducing VW's total effective sentence to 4 years. Counsel for the Director submitted that the non-parole period of 2 years fixed by the judge was the minimum which justice required. He went so far as to submit that anything less than 2 years would be 'manifestly inadequate', given the seriousness of VW's offending.

51 There is considerable force in those submissions. A 2 year non-parole period would represent 50 per cent of the reduced head sentence of 4 years, which is at the lowest end of the range. In the end, however, we are persuaded that VW's ongoing serious ill-health, and her partial success in relation to the pill press count, warrant a reduction in the non-parole period to 1 year and 9 months.

Driving offences; possess DOD; possess proceeds of crime; intentionally damage property; unlicensed driving; RCI x 2; theft; criminal damage; breach IO.

[1] DPP (Vic) v Sassine (Unreported, County Court of Victoria, Judge Lawson, 16 December 2010), [34]-[36].

[2] See R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 436-8.

[3] DPP (Vic) v Sassine (Unreported, County Court of Victoria, Judge Lawson, 16 December 2010), [62].

[5] R v Pidoto [2006] VSCA 185; (2006) 14 VR 269, 272-3 [14]-[16].

[6] DPP (Vic) v Kalakias, S Wilson & Ors (Unreported, County Court of Victoria, Judge Lawson, 5 November 2010), [91].

[7] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 500 [22]; R v Lowe [2009] VSCA 268, [20]; Humphries v The Queen [2010] VSCA 161, [10].

[9] DPP (Vic) v V Wilson (Unreported, County Court of Victoria, Judge Lawson, 29 November 2010), [40], [45].

[10] DPP (Vic) v Kalakias, S Wilson & Ors (Unreported, County Court of Victoria, Judge Lawson, 5 November 2010), [152]-[158].

Poisons and Controlled Substances Act 1981

Wilson v The Queen; DPP v Sassine; DPP v Kalakias; Wilson v The Queen [2012] VSCA 141

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Wilson v The Queen; DPP v Sassine; DPP v Kalakias; Wilson v The Queen [2012] VSCA 141 (29 June 2012)

Legislation Cited (1)

Cases Cited (4)