Belhaj v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0134

MOHAMMED BELHAJ	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2025
DATE OF JUDGMENT:	22 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 174
JUDGMENT APPEALED FROM:	DPP v Belhaj (County Court of Victoria, Judge Allen, 27 June 2024)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Sentence – Application for leave to appeal – Trafficking in not less than a commercial quantity of methylamphetamine – Possession of cocaine – Knowingly deal with proceeds of crime – Failing to provide information or assistance to police officer – Total effective sentence of 5 years and 4 months’ imprisonment with non-parole period of 3 years – Whether reasonably arguable that individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly excessive – Significant mitigatory factors applicable to applicant – High objective gravity of offending – Not reasonably arguable that sentences manifestly excessive – Application refused.

Barbaro v The Queen [2021] VSCA 277; Parks v The Queen [2017] VSCA 232; Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, discussed.

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Counsel
Applicants:		Mr R Nathwani SC
Respondent:		Mr JH Shaw with Mr J Gullaci (solicitor)
Solicitors
Applicants:	Stephen Andrianakis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA:

Introduction

The applicant pleaded guilty in the County Court to the following charges: a charge of trafficking in a drug of dependence in not less than a commercial quantity (methylamphetamine); a charge of possession of a drug of dependence (cocaine), a charge of dealing in proceeds of crime — $40,000 — in the knowledge that this money was the proceeds of crime, and a related summary offence of failing to comply with a direction that the applicant provide a personal identification number access code for two electronic devices.
The applicant was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment M10419197.1
1	Trafficking in a drug of dependence (methylamphetamine) — commercial quantity[1]	25 years	4 years and 6 months	Base
2	Possession of a drug of dependence (cocaine)[2]	5 years	10 months	3 months
3	Knowingly deal with proceeds of crime[3]	15 years	1 year and 6 months	6 months
Related Summary Offences
7	Failing to provide information or assistance to a police officer[4]	2 years	6 months	1 month
Total Effective Sentence:		5 years and 4 months’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		249 days
Section 6AAA Statement:		6 years’ imprisonment with a non-parole period of 4 years
Other Relevant Orders		Forfeiture and disposal orders

[1]Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’).

[2]Contrary to s 73(1) of the Drugs Act.

[3]Contrary to s 194(2) of the Crimes Act 1958 (‘Crimes Act’).

[4]Contrary to s 365AAA(4) of the Crimes Act.

The applicant applies for leave to appeal against these sentences. He has one proposed ground of appeal. The terms of that ground are as follows:
Ground 1: Having found the Applicant’s mitigation was powerful and exceptional, the learned judge imposed individual terms of imprisonment, orders for cumulation, a total effective sentence and non-parole period that were all manifestly excessive.
Particulars:
(a) Each individual sentence imposed was manifestly excessive;
(b) The orders for cumulation were manifestly excessive;
(c) The non-parole period was manifestly excessive; and
(d) The overall sentence imposed was manifestly excessive.
For the reasons that follow, I am not persuaded that leave to appeal should be granted; I do not consider that the applicant’s proposed ground of appeal is reasonably arguable.

The offending

The applicant was 37 when he offended. In late 2019, and into early 2020, police investigated the applicant by monitoring his communications with others. It was suspected that the applicant was trafficking in drugs.
Ultimately, on 26 February 2020 at 5 am, police executed a search warrant at premises where the applicant lived. As a result of this search, police seized various items. Police found various substances contained in zip lock bags. In some of these bags were substances containing methylamphetamine; in other such bags were substances containing cocaine. Police also found four bundles of $10,000 in cash (charge 3). Electronic devices belonging to the applicant were discovered. Police demanded that the applicant provide the passcodes to two such devices. The applicant refused (related summary charge 7).
The total quantity of substance containing methylamphetamine found was 730.3 grams (charge 1). Pure methylamphetamine made up around 65% of this substance, namely, 473.87 grams. This pure quantity of methylamphetamine represented some nine times the statutory commercial quantity threshold; whilst the mixed quantity containing the methylamphetamine stood at some 2.9 times its commercial quantity threshold.[5] The quantity of pure methylamphetamine was approximately 27 grams less than the pure large commercial quantity threshold (94.77%), whereas the mixed substance stood at some 19.7 grams under the mixed large commercial quantity threshold (97.37%).[6]
[5]A commercial quantity of methylamphetamine is 50 grams pure, or 250 grams mixed: Drugs Act, sch 11 pt 3.
[6]A large commercial quantity of methylamphetamine is 500 grams pure or 750 grams mixed: ibid.
The total quantity of substance located containing cocaine was 125.1 grams (charge 2).
The applicant made a ‘no comment’ record of interview with police.

The plea

The applicant made an extensive plea. It was conducted over five days. A large amount of material was tendered. This included the following: a Forensicare ‘Psychology Court Report’ authored by Dr Amanda Nielsen; two Psychological Assessment Reports authored by Ms Gina Cidoni; further expert evidence relevant to the applicant’s general physical condition; affidavit material describing the level of medical care received by the applicant in custody; reports from counsellors; evidence establishing completion by the applicant of a live-in rehabilitation program conducted at a venue known as ‘The Cottage’; and numerous character references. Each party filed various sets of written submissions. Given the comprehensive nature of the judge’s reasons for sentence, referred to below, it is unnecessary to summarise this material in any depth.
Important aspects of the plea were as follows: the applicant’s dysfunctional upbringing; his compromised mental and physical health; the substantial progress that the applicant had made towards his rehabilitation; and the difficulties suffered by the applicant which attended his experience of custody. Concerning this last matter, it was submitted that the applicant was not receiving a sufficient level of medical care whilst in custody.
The applicant submitted that there was a ‘fairly unusual, if not extraordinary conflation of personal circumstances’ apparent in the present case. It was submitted that an ‘extraordinary conflation of personal circumstances’ demanded a sentence that was far less than what otherwise might have been expected.
The applicant had a number of prior convictions. These dated back to 2003. They concerned, in the main, offences of dishonesty, violence and property damage. The applicant had previously received terms of imprisonment and community based dispositions. Relevantly, the applicant had, in November 2017, been sentenced in the County Court for the offence of trafficking in methylamphetamine. On that occasion he received 30 months’ imprisonment with a non-parole period of 15 months.
On the plea the prosecution provided a chart containing reference to other sentencing cases of trafficking in drugs in not less than a commercial quantity. In written submissions the applicant argued that in view of the particular mitigatory features present in his case ‘there are no like sentences which would provide the court with assistance in sentencing the accused’. Despite this, the applicant did make reference to one other sentencing case — this Court’s decision in Barbaro v The Queen (‘Barbaro’).[7] Citing Barbaro, the applicant submitted that ‘[w]ithout trivialising those matters personal to the Appellant in that case, it is clear that the complexities endured by the accused in the present case go well beyond that in [Barbaro]’.
[7][2021] VSCA 277 (‘Barbaro’).

The reasons for sentence

The judge, in his reasons for sentence, noted that drug trafficking is an ‘extremely serious criminal offence’ and that offending of the type committed by the applicant ‘has tragic deleterious effects on its victims and on the community’.[8] The judge observed, moreover, that ‘[s]ignificant terms of imprisonment’ are necessary to achieve the sentencing objectives of general and specific deterrence, and that both forms of deterrence were important in this case ‘particularly bearing in mind [the applicant’s] prior conviction for trafficking in methylamphetamine’. The judge noted that ‘lengthy sentences’ were necessary in order to protect the community, to express denunciation, and to punish offenders like the applicant.[9]
[8]DPP v Belhaj (County Court of Victoria, Judge Allen, 27 June 2024) 169 [11] (‘Reasons’).
[9]Reasons, 170 [12].
The judge observed that this Court has made clear ‘time and time again’ in cases such as the present, where the amount trafficked by weight approached the ‘large commercial quantity threshold’, that ‘lengthy sentences of imprisonment usually cannot be avoided’;[10] and that this Court, in Gregory (a pseudonym) v The Queen (‘Gregory’),[11] had indicated that ‘usually sentences in the double figures might be expected, depending on a range of circumstances’.[12] Nevertheless, the judge indicated that quantity, whilst an ‘important factor’, was ‘only one of a range of factors to consider, and quantity should never swamp other factors which may bear particular relevance in a particular case’.[13]
[10]Reasons, 170 [13].
[11](2017) 268 A Crim R 1; [2017] VSCA 151 (‘Gregory’).
[12]Reasons, 170 [13].
[13]Reasons, 170 [14].
The judge took into account that the applicant was entitled to a ‘real benefit’ for his plea of guilty.[14]
[14]Reasons, 175 [35].
But the judge also observed that in this case there were a range of ‘powerful mitigating circumstances’ which put the applicant’s matter in an ‘exceptional category’; and which justified ‘a much lower sentence than might have otherwise been expected for offending of this kind’.[15] It was not contended that the judge had overlooked any particular matter in mitigation.[16] Towards the end the reasons, the judge listed the essential mitigatory matters seriatim.
[15]Reasons, 170 [15].
[16]The applicant drew attention to the fact that the judge had not mentioned expressly in his reasons that the pleas of guilty were entered at a point in time when the court lists were still congested because of the COVID-19 pandemic, thereby entitling the applicant to an increased utilitarian benefit. It was also acknowledged that the judge had not made express mention of the difficulties, caused by the pandemic, experienced by the applicant during his initial stint of imprisonment before being granted bail. It appears that during this period the applicant had been denied access to various recreational opportunities normally offered to prisoners; and it appears also that the applicant was required to spend a not insignificant period in isolation. Consistently with the terms of the applicant’s proposed ground of appeal, it was not contended that the judge committed specific error by failing to make express reference to these matters in the reasons.
First, the judge took into account the applicant’s upbringing, which the judge characterised as having involved ‘severe childhood deprivation’ and ‘dysfunction’ and which entailed the applicant’s exposure to ‘violence, isolation and homelessness’.[17] The judge considered that the circumstances of the applicant’s upbringing had ‘had very serious deleterious and lasting effects upon [the applicant]’.[18] The judge quoted liberally, in this respect, from the psychological reports tendered on the plea. The applicant was essentially homeless from the age of 14.[19] The judge considered that the applicant was entitled to mitigation in keeping with the principles set out by the High Court in Bugmy v The Queen,[20] and this Court in Director of Public Prosecutions v Herrmann.[21]
[17]Reasons, 175 [37].
[18]Reasons, 175 [37].
[19]Reasons, 171 [19].
[20](2013) 249 CLR 571; [2013] HCA 37.
[21][2021] VSCA 160.
Secondly, the judge took into account that the applicant had ‘experienced significant mental illness since childhood’ which had caused the applicant to resort to gambling and drug abuse as a child.[22] The expert opinion tendered on the plea established that the applicant suffered from psychiatric illnesses such as post-traumatic stress disorder, generalised anxiety disorder and major depressive disorder.[23]
[22]Reasons, 176 [38].
[23]Reasons, 172 [21].
Thirdly, the judge took into account that — since 2014 — the applicant had suffered ‘severe pain, discomfort and limitation of movement’ which required ‘intensive treatment and therapy’. This arose from serious injuries sustained by the applicant caused by a car bomb when he was 28.[24] The applicant submitted that as a result of the bomb he lost three quarters of his right calf and received shrapnel wounds to his legs and lower body. The chronic pain suffered by the applicant as a result of this caused his mental health to deteriorate even further. The applicant turned to drugs and gambling as a means of coping.
[24]Reasons, 171–2 [20], 176 [39].
Fourthly, at the time of sentence, there had been a delay of nearly three and a half years since the applicant’s present offending. As the judge described it, these charges had ‘hung over [the applicant’s] head like the sword of Damocles’. The judge concluded that such delay, in itself, was a ‘form of punishment’; but the judge also considered that this period of delay had provided the applicant the opportunity to demonstrate rehabilitation. As the judge expressed it: ‘The delay is a powerful mitigating factor in itself that I have taken into account.’[25]
[25]Reasons, 176 [40]–[41].
As part of the process of rehabilitation undertaken by the applicant during the period of delay, the judge made extensive reference to the fact that as a condition of his bail the applicant had attended ‘The Cottage’.[26] It is desirable to set out what the judge actually had to say on this topic:
You remained there [The Cottage] for sixteen weeks. That program was highly successful. The reports are glowing. You committed yourself to it. You complied with all the requirements of the program. You provided assistance to other inmates. After you completed the program you continued with ongoing counselling voluntarily, with the psychologist who had been at that program. That counselling continued up until the time I remanded you in custody in February this year. This is to be taken into account as an important matter in mitigation, pursuant to the principles enunciated in cases such as Acoca [scil, Akoka].[27] That is, the fact that you were residing under strict conditions for 16 weeks, is effectively akin to a form of detention. You demonstrated your firm commitment to rehabilitation, and your capacity to comply with the program and succeed.[28]
[26]Reasons, 176 [42].
[27]Akoka v The Queen [2017] VSCA 214 (‘Akoka’).
[28]Reasons, 176–7 [42].
The judge indicated that he would reduce the applicant’s sentence on account of this particular matter.[29]
[29]Reasons, 177 [43].
Fifthly, the judge took into account that whilst on bail the applicant was subject to ‘restrictive bail conditions, including an onerous curfew condition’. The judge considered these conditions of bail to be a ‘form of extra curial punishment’.[30]
[30]Reasons, 177 [44].
Sixthly, the judge took into account that, since the present offending, the applicant had neither reoffended nor relapsed into drug abuse.[31]
[31]Reasons, 177 [45].
Seventhly, the judge took into account that the service of the applicant’s sentence would be made more burdensome for him because of his knowledge of his father’s illness, and his concern that his father may die whilst the applicant was still in jail.[32]
[32]Reasons, 177 [46]. The Court was informed, at the hearing of this matter, that the applicant’s father had since passed away.
Eighthly, the judge took into account that service of a term of imprisonment would be made more burdensome for the applicant by reason of the various mental disorders from which he suffered; and that it was likely that imprisonment would aggravate the applicant’s mental condition.[33] In this respect, the judge noted Dr Nielsen’s opinion that the applicant’s state of mental health had worsened since he had been placed in custody. It was said that the applicant’s anxiety and depression had risen to the ‘extreme range’.[34]
[33]Reasons, 175 [34], 177–8 [47]. See also limbs 5 and 6 of R v Verdins (2007) 16 VR 269; [2007] VSCA 102: at 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[34]Reasons, 173 [26].
Ninthly, the judge took into account the manner in which the applicant’s physical incapacity, caused by his physical injuries, would burden him whilst he was imprisoned. The judge referred to ‘the pain, the discomfort and the restriction of liberty’ suffered by the applicant in custody.[35]
[35]Reasons, 178 [48].
Tenthly, and importantly, the judge took into account the fact that the applicant was not receiving adequate treatment in custody for both his physical and mental problems; and that it was unlikely that this situation would alter. As already noted, the judge considered that there was a risk that imprisonment would aggravate the applicant’s mental illnesses; but the judge considered that this also held true when it came to the applicant’s physical difficulties.[36] Concerning the applicant’s physical injuries, the judge observed that the applicant had not been provided with ‘adequate physiotherapy’; and nor had the applicant been provided with ‘any appropriate pain management treatment, apart from advice to take analgesics’.[37]
[36]Reasons, 174–5 [30]–[33].
[37]Reasons, 174 [32].
The judge ended the reasons for sentence by observing as follows:
In O’Neill, the Court of Appeal said, at paragraph 59, that there may be circumstances where
the offender’s condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.[38]
It is my view that the application of the ‘underlying sense of humanity’ in this case calls for a sentence significantly lower than a sentence I would have otherwise imposed in this case, but for the combination of mitigating circumstances that I have just summarised. This is a case, in my view, to quote Charles JA in Miceli, where on the evidence before me, ‘a reasonable basis exist[s] in well-balanced judgment for adopting a course which might bear less heavily upon [you] than if [you] were to receive [your] just deserts’.[39]
In my view, the combination of circumstances in this case entitles you to receive proper consideration for the claim you have for the exercise of clemency. Accordingly, while the sentences are significant, they are considerably lower than they would have been but for the combination of circumstances to which I have referred.[40]
[38]DPP v O’Neill (2015) 47 VR 395, 410 [59] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325.
[39]R v Miceli [1998] 4 VR 588, 588; [1997] VSC 22.
[40]Reasons, 178 [49]–[50].

Submissions

Applicant

As indicated above, the applicant did not contend that the judge had acted upon incorrect principle; or had allowed extraneous or irrelevant matters to guide or affect him; or had mistaken the facts; or had failed to take into account some material consideration. The contention was that the sentences imposed on the applicant were manifestly excessive; and that so much was apparent if proper regard was paid to the particular mitigatory matters that had been found by the sentencing judge.
Whilst the applicant impugned the length of all the sentences imposed, the main focus of attack was the sentence ordered on the trafficking charge — the charge 1 sentence.
An aspect of the applicant’s case, made in this respect, was to argue that the charge 1 sentence was inconsistent with current sentencing practice. Of the sentencing cases involving trafficking in not less than a commercial quantity included in the Crown’s chart of cases, the applicant singled out for particular mention this Court’s decision in Parks v The Queen (‘Parks’).[41]
[41][2017] VSCA 232 (‘Parks’).
The applicant noted that in Parks a term of six years’ imprisonment had been imposed. The applicant in Parks had a relevant prior conviction for trafficking in methylamphetamine. The applicant in Parks had been found guilty after trial. He was unable to rely on mitigatory matters of the number and quality relied on by the present applicant.[42] It was thus submitted that the difference between the four and a half years, imposed for trafficking in not less than a commercial quantity in this case, and the six years imposed in Parks, revealed the present sentence’s inconsistency with relevant current sentencing practice.
[42]Ibid [46]–[49].
The applicant submitted that the sentencing statistics for the offence of trafficking in not less than a commercial quantity[43] supported the submission that the present charge 1 sentence was manifestly excessive.

Respondent

[43]Sentencing Advisory Council, Sentencing Snapshot: Trafficking in a Commercial Quantity of Drugs (No 268, April 2022).

The respondent submitted that the present sentences were not manifestly excessive.
The respondent emphasised that the quantity trafficked by the applicant was at the very upper end of the commercial quantity threshold. The respondent submitted that application of this Court’s observations in Gregory (where it was said that, in cases bearing features similar to the instant case, sentences ‘well into double figures’ would be expected)[44] meant that the present charge 1 sentence could only be viewed as merciful. If that were so, then by no means could it be successfully contended that the orders for cumulation, total effective sentence and non-parole period imposed in this case were all manifestly excessive. Leaving aside the quantity trafficked by the applicant, the present trafficking operation was the applicant’s own venture and he had a prior conviction (which had resulted in a term of imprisonment) for activity of a very similar nature.
[44]Gregory (2017) 268 A Crim R 1, 24 [98] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151.
Insofar as the applicant had placed reliance on Parks, the respondent noted that the amount trafficked in that case was far lower. In that case the amount trafficked was only 218.6 grams of mixed substance containing methylamphetamine (or 195 grams pure).[45] Here, the amount was 730.3 grams of mixed substance and 473.87 grams pure. The respondent submitted that this difference in quantity explained any apparent inconsistency between the charge 1 sentence imposed on the applicant and the methylamphetamine trafficking sentence imposed in Parks.
[45]Parks [2017] VSCA 232, [4](a).

Consideration

As this Court has repeatedly emphasised:
[T]he ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[46]
[46]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
The issue, for present purposes, is whether it is reasonably arguable that the sentences imposed on the applicant are manifestly excessive.
I am not persuaded that this is so.
The focus of attention must necessarily commence with consideration of the sentence imposed on charge 1 — the charge of trafficking in not less than a commercial quantity. This sentence represents the worst of the applicant’s offending, and forms the base sentence upon which the total effective sentence is constructed. Any reduction to the charge 1 sentence would likely lead to a reduction overall.
This Court, in Gregory, closely examined sentencing practice for the offence of trafficking in not less than a commercial quantity of a drug of dependence. Having conducted that examination, the Court concluded that current sentencing practice ‘for CQ[47] trafficking in the upper category of the offence is plainly inadequate’.[48]
[47]Commercial quantity.
[48]Gregory (2017) 268 A Crim R 1, 24 [100] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151.
The Court observed, further, that
[i]t would therefore be expected — and Parliament must be taken to have intended — that there would be a spread of sentences across the statistical range. In particular, sentences well into double figures would have been expected for CQ trafficking offences where one or more of the following features was present:
·the quantity involved approached the LCQ threshold;
·the offender was in charge of the trafficking business;
·the business was conducted for a substantial period;
·the offender pleaded not guilty; and/or
·the offender had relevant prior convictions.[49]
[49]Ibid 24 [98].
These observations were cited, with approval, by this Court in Director of Public Prosecutions v Condo (‘Condo’).[50]
[50][2019] VSCA 181, [29] (Maxwell P, T Forrest and Weinberg JJA).
The sentencing judge, in the present case, had particular regard to what this Court said in Gregory, and what was reaffirmed in Condo.[51]
[51]Reasons, 170 [13].
The maximum penalty for the charge 1 offence is 25 years’ imprisonment. The quantity trafficked by the applicant was at the very upper end of the commercial quantity threshold; whether assessed by reference to the pure or mixed substance. The trafficking ‘business’ — such as it was — was the applicant’s; but he was to be sentenced for having trafficked on a single day. The applicant had a prior conviction for trafficking in methylamphetamine, for which he had been sentenced to a term of imprisonment.
The applicant submitted that — in terms of current sentencing practices — while the Court in Gregory had indicated that in a case like the present a sentence in ‘double figures’ might be expected, as a matter of fact sentencing statistics do not bear this out. But, as has often been said, sentencing statistics are a blunt instrument by which to measure comparable cases.[52]
[52]See, for instance, Comer v The King [2025] VSCA 8, [37], [57] (Orr JA).
The marked difference in quantity trafficked in Parks undermines the role of that particular case as a relevant comparator.
It is perhaps instructive, however, to give consideration to Barbaro — the only other sentencing case that was given prominence in the court below by the applicant. The appellant, in Barbaro, pleaded guilty to trafficking in not less than a commercial quantity of MDMA. He had trafficked in a quantity of MDMA that was close to the large commercial quantity applicable in respect of that particular drug. Like the present applicant, the appellant in Barbaro underwent a period of intensive rehabilitation in a residential clinic for a period of three months, thereby entitling him to credit for Akoka time.[53]
[53]Barbaro [2021] VSCA 277, [1], [8], [17] (Kaye and T Forrest JJA); Akoka [2017] VSCA 214, [105]–[115] (Warren CJ, Kyrou and Redlich JJA).
Like the present applicant, the appellant in Barbaro had had a dysfunctional childhood: his home life was chaotic; his father was a heavy user of drugs; and he began abusing drugs in his teenage years. Like the applicant, the appellant in Barbaro had left home early. He had lived in ‘transient accommodation’.[54]
[54]Barbaro [2021] VSCA 277, [14]–[15].
Also like the applicant, the appellant in Barbaro, after treatment at the intensive residential clinic, was released on bail and underwent further rehabilitative counselling. The level of rehabilitation achieved was described as ‘remarkable’.[55]
[55]Ibid [17]–[19].
The appellant in Barbaro suffered from borderline personality disorder, anxiety and depression. He had low to borderline intellectual functioning, and suffered from extreme bouts of asthma. The comorbidities suffered by the appellant in Barbaro meant that he could not be vaccinated against COVID-19. This increased the burden of his experience in prison. Also increasing this burden was the weight of separation from his partner and young children.[56]
[56]Ibid [21]–[24], [73].
This Court, in Barbaro, was satisfied that
there [were] particularly unusual mitigating circumstances available to the appellant, which require the imposition of sentences which would be significantly less than the sentences that should otherwise be imposed for the kind of offending in which the appellant engaged.[57]
[57]Ibid [76].
It can be readily understood why the applicant cited Barbaro in the court below as a potentially comparable case. And it may also be understood why the applicant submitted, in respect of Barbaro, that ‘the complexities endured by the accused in the present case go well beyond that in [Barbaro]’. But, unlike the present applicant, the appellant in Barbaro did not have any relevant prior convictions. Of course, the present applicant had a highly relevant prior; one which bore upon the need for specific deterrence and the applicant’s prospects of rehabilitation.
Like the present applicant, the appellant in Barbaro was sentenced to 4 years and 6 months on the charge of trafficking in not less than a commercial quantity of the drug.
It is unnecessary to dwell overly upon the sentences imposed in other cases, for, as the High Court emphasised in Director of Public Prosecutions vDalgliesh,[58] while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration, that factor is only one of a number of factors which must be taken into account in the exercise of the sentencing discretion.[59]
[58](2017) 262 CLR 428; [2017] HCA 41.
[59]Ibid 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
By reference to other sentencing cases relied on in the sentencing court, and in this Court, I am not persuaded that the present charge 1 sentence is out of kilter with current sentencing practices.
And having regard to all relevant matters, in the end, I am not persuaded that it is reasonably arguable that the sentence imposed on charge 1 is manifestly excessive. To this end, I am keenly aware that the applicant has a powerful collection of mitigatory matters upon which he can rely. Like the sentencing judge, I consider that the applicant was — on account of those matters — deserving of clemency.
Nevertheless, I consider that when regard is had to the objective gravity of the applicant’s offending (assessed by reference to the role played by the applicant as well as the quantity trafficked), examined in light of the applicable maximum penalty and the need to fulfil the various purposes of sentencing (which include in this case giving weight to specific deterrence on account of the applicant’s prior conviction for trafficking), it seems to me that the sentencing judge mitigated penalty on charge 1 to a level that was clearly within range.
As Priest AP and Niall JA[60] observed in Johnson v The King:[61]
This Court has emphasised on many occasions that general deterrence is an important sentencing consideration in cases of drug trafficking. Those who seek the apparent financial rewards associated with drug trafficking must know that they will be punished appropriately if detected. It is also important that a sentencing court take into account the prevalence of the offence of trafficking in methylamphetamine when assessing the weight to be given to general deterrence.[62]
[60]As his Honour then was.
[61][2022] VSCA 228.
[62]Ibid [24].
Nor am I persuaded, all things considered, that it is reasonably arguable that the other individual sentences imposed on the applicant are manifestly excessive. In one sense it is unnecessary to decide that question, for even if one or more of those individual sentences were considered excessive, in my view the orders for cumulation made in respect of those other sentences are of such a modest nature that, were error established as contended, I consider that there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence.[63]
[63]Criminal Procedure Act 2009, s 280(1)(b).
That leaves the non-parole period. As it stands, the non-parole period constitutes some 56% of the total effective sentence. It is clear that the judge has properly factored the applicant’s proven prospects of rehabilitation into the sentencing mix in fixing the non-parole period.

Conclusion

For these reasons the application for leave to appeal must be refused.

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[2025] VSCA 174

22 July 2025