Ellis v The Queen [2018] VSCA 221 (31 August 2018)

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SARAH ELLIS	Applicant

v

THE QUEEN	Respondent

JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2018
DATE OF JUDGMENT:	31 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 221
JUDGMENT APPEALED FROM:	[2018] VCC 402 (Judge Chettle)

CRIMINAL LAW – Application for leave to appeal against sentence – Proposed ground manifest excess – Trafficking in a commercial quantity of a drug of dependence – 3.5kg of 1,4-butanediol – Relevance of profitability of drug of dependence – Offences committed whilst on bail and subject to community correction order – Application refused – DPP v Maxwell [2013] VSCA 50 considered.

APPEARANCES:	Counsel	Solicitors

For the Applicant	Mr J O’Connor	Sarah Pratt & Associates

For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

1 The applicant, Sarah Ellis, pleaded guilty in the County Court to offences involving the possession and trafficking of drugs of dependence and dealing with the proceeds of crime.

2 On 4 April 2018 she was sentenced by a judge in the County Court as follows:^[1]

Charge	Offence	Maximum penalty	Sentence	Cumulation
	Trafficking in a drug of dependence: s 71AC Drugs Poisons and Controlled Substances Act 1981 (Vic)	15 years	1 year	6 months
	Trafficking in not less than a commercial quantity of a drug of dependence: s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic)	25 years	4 years	Base
	Possession of a drug of dependence: s 73(1)(a) Drugs Poisons and Controlled Substances Act 1981 (Vic)	5 penalty units	Fined $200	N/A
Summary charge 7	Deal with property suspected to be proceeds of crime: s 195 Crimes Act 1958 (Vic)	2 years	3 months	Concurrent
Total Effective Sentence:		4 years and 6 months imprisonment
Non-Parole Period:		3 years imprisonment
*Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		123 days
6AAA Statement: 7 years imprisonment with a non-parole period of 4 years
Other relevant orders: Forfeiture Order

4 The proposed ground of appeal asserts a different total effective sentence and a different non-parole period to those we have tabulated. Before us the parties were agreed that the sentences are as we have set them out. The applicant seeks to contend that the sentence of 1 year’s imprisonment on charge 1, 4 years on charge 2, 3 months on the summary charge, the total effective sentence of 4 years 6 months, and the non-parole period of 3 years, are each manifestly excessive.

5 The conduct constituting charge 1 (trafficking ― alprazolam) was an agreement entered into by the applicant with another person to sell that person a quantity of Xanax. The transaction was to take place at an address in Norlane on 23 July 2017. The purchaser attended the address, but the transaction did not take place, and police became involved.

6 On 17 August 2017 the police executed a search warrant at the applicant’s residence in Bell Park. They located 3.5kg of 1,4-butanediol in a walk-in wardrobe, which is 1.75 times the prescribed commercial quantity of that drug (charge 2 ― trafficking 1,4 butanediol). The police also located a small quantity of cannabis (charge 3 ― possession cannabis) and $3,405 cash (summary charge ― dealing with proceeds of crime).

7 The applicant is now 25 years of age. She was 24 years old at the time of the offending.

8 A report of a psychologist, Ms Lisa Jackson, was tendered on the plea. It relates the traumatic events of the applicant’s childhood, and of her abuse in adulthood at the hands of her ex-partner. The report discusses the applicant’s long history of drug and alcohol abuse, commencing with the use of Valium at the age of 12 and then methamphetamine from the age of 15. The report suggests the applicant suffers from post-traumatic stress disorder, depression and anxiety.

9 On 13 February 2014, when the applicant was 20 years old, she was convicted in the County Court on a charge of recklessly causing serious injury and was sentenced to a term of imprisonment of 30 months with a non-parole period of 15 months.

10 In January 2017, approximately six months prior to the first trafficking offence which is now the subject of this application, she committed a number of offences including trafficking in methylamphetamine and dealing with property suspected of being the proceeds of crime. She was bailed on those offences and they were eventually dealt with on 3 October 2017. We will refer to these offences as ‘the January 2017 offences’.

11 In May 2017, approximately two months prior to the first trafficking offence which is the subject of this application, the applicant was arrested and charged with offences including trafficking methylamphetamine, possessing GHB, possessing ecstasy, using methylamphetamine, committing an indictable offence whilst on bail, dealing with the proceeds of crime and making a false document. She was remanded in custody. These offences were dealt with at the Geelong Magistrates’ Court on 11 July 2017, less than two weeks prior to the commission of the first trafficking offence which is the subject of this application. As at 11 July 2017 she had been in custody for 68 days. She was sentenced to a term of imprisonment of 68 days, with time already served reckoned as 68 days, and a community correction order of 14 months.

12 The offences which are the subject of this application were committed on 23 July 2017 and 17 August 2017. Thus, those offences were committed whilst on bail for the January 2017 offences, whilst serving a community correction order imposed on her for similar offending on 11 July 2017, and very shortly after being released having served 68 days in custody.

13 The applicant was convicted and sentenced for the January 2017 offences on 3 October 2017 at the Geelong Magistrates’ Court. She was sentenced to a total effective term of imprisonment of four months.

14 The applicant pleaded guilty to the offences the subject of this application at a committal mention on 1 December 2017. A plea hearing was conducted on 19 March 2018 and the applicant was sentenced on 4 April 2018.

15 The sentencing judge described the circumstances of the offending and set out the applicant’s criminal record, including her conviction on 13 February 2014 for recklessly causing serious injury, and her convictions and sentences in July and October for the other offences committed in 2017.^[2] He described the fact that, at the time of the offending, the applicant was on bail, and subject to the community correction order imposed on 11 July 2017, as factors that aggravated the offending.^[3]

16 The judge expressly referred to the necessity to have regard to the principle of totality in determining the applicant’s sentence.^[4]

17 The sentencing judge stated that the applicant was entitled to a reduction in the sentence that would otherwise be imposed to reflect her early guilty plea.^[5]

18 The judge set out the applicant’s troubled personal circumstances. He stated that he regarded the applicant’s traumatic childhood as a mitigatory feature.^[6] He also referred to the psychologist’s report, including the discussion of the applicant’s drug use and mental health issues.^[7]

19 The sentencing judge said he had had careful regard to the decision of DPP v Maxwell,^[8] in which this Court considered the relationship between the financial reward anticipated by a drug offender and the objective gravity of the offence.^[9] The judge noted the Crown’s concession that 1,4-butanediol is less profitable than other drugs of dependence.^[10] The sentencing judge accepted the applicant’s counsel’s submission that the applicant’s offending ‘lies at the lower end of the range of offences of trafficking in a commercial quantity of a drug of dependence’.^[11]

20 The sentencing judge assessed the applicant’s prospects of rehabilitation as poor. He noted that despite her relative youth, the applicant had a significant prior criminal history, and that much would depend on her ability to remain drug free.^[12]

21 The applicant submits that the ‘magnitude’ of the trafficking offence in charge 2 in this case is low and that the penalty imposed was manifestly excessive. The applicant submits that 1,4-butanediol is not a profitable drug, and that the trafficking charge was put on the basis of possession for sale and in respect of a single day only, being 17 August.

22 The applicant relies upon the findings made by the trial judge that the offending lies at the lower end of the range, and that the applicant’s dysfunctional childhood weighed in mitigation. The applicant submits that in the context of these findings the individual sentence on charge 2 is manifestly excessive.

23 The applicant in her written case relied upon the sentence imposed in DPP v Bugeja,^[13] where an offender received a 3 year community correction order for trafficking in 12kg of 1,4-butanediol. In oral submissions counsel also referred to DPP v Bowden,^[14] DPP v Muthia,^[15] DPP v Hassan^[16] and DPP v Vo.^[17]

24 The applicant submits that the sentences on charge 1 and the summary offence are also manifestly excessive.

25 The respondent submits that the sentences are not arguably manifestly excessive. The respondent submits that the case of Bugeja is not comparable, as the offender in that case had only one prior conviction which the sentencing judge had considered to be irrelevant. The respondent submits that the offence of trafficking in not less than a commercial quantity of 1,4-butanediol commonly attracts sentences of imprisonment of the same or greater magnitude than the sentence imposed upon the applicant, and referred in that context to sentences imposed in DPP v Donaldson,^[18] DPP v Khalil,^[19] DPP v Webb^[20] and DPP v Rheinberger.^[21]

26 But for the applicant’s criminal history, and the sequence of events in 2017, there would be merit in the contentions put on the applicant’s behalf.

27 The applicant has had a traumatic life. She is still young. She pleaded guilty early. The potential rewards from her trafficking were not great.

28 However, her prior offending and the sequence of events in 2017 cannot be ignored. She has a serious prior conviction for which she served a significant term of imprisonment. When these offences were committed she was on bail for similar offending. She was also subject to a community correction order, again for similar offending, which had been imposed very shortly before the first of these offences. She had just been released after serving 68 days in custody. The sentencing judge was clearly correct in assessing her prospects of rehabilitation as poor. The need for specific deterrence was obvious and significant.

29 In relation to the sentence on charge 2 we have reviewed the sentences in Bugeja, Muthia, Bowden, Hassan and Vo, upon which counsel for the applicant relies or referred to, and the sentences in Donaldson, Khalil, Webb and Rheinberger, upon which counsel for the respondent relies. That review reveals that sentences well below 4 years’ imprisonment might be imposed where there are no relevant prior convictions (Bugeja) or where there are unusual mitigating features (Muthia). Otherwise, the sentences range from 2½ years to 5 years’ imprisonment (Webb: 4½ years, Hassan: 3½ years, Khalil: 4 years, Donaldson: 5 years, Bowden: 2½ years, Rheinberger: 4½ years, Vo: 3½ years). It is true, as counsel for the applicant submitted that the quantity trafficked by the applicant was generally lower than in those cases, but, on the other hand, the applicant’s persistence in her offending during 2017 is a significantly aggravating circumstance, as the sentencing judge observed.

30 Manifest excess is a difficult ground to establish. It can succeed only where it is established that the sentence imposed is wholly outside the range of sentences open to the sentencing judge. Notwithstanding the thoughtful and comprehensive submissions put on behalf of the applicant, the sentences imposed on charges 1, 2 and the summary charge, and the total effective sentence and non-parole period, are not arguably manifestly excessive in our view.

Supreme Court of Victoria - Court of Appeal

Ellis v The Queen [2018] VSCA 221 (31 August 2018)