De Luca v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0074

RICHARD DE LUCA	Appellant
v
THE KING	Respondent

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JUDGES:	TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2023
DATE OF JUDGMENT:	9 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 44
JUDGMENT APPEALED FROM:	[2022] VCC 703 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Indictment charges of attempted trafficking in a drug of dependence, trafficking in a drug of dependence, being a prohibited person in possession of a firearm, theft and knowingly dealing with the proceeds of crime – Summary offences of dangerous driving, unlicenced driving, and driving while exceeding the prescribed concentration of drugs – Early guilty plea – Appellant sentenced to 6 years and 3 months’ imprisonment with a non-parole period of 4 years and 3 months – Whether the judge erred in the application of the principal of totality – Whether sentence manifestly excessive – Appeal dismissed.

Akoka v The Queen [2017] VSCA 214; DPP (Commonwealth) v Maxwell (2013) 228 A Crim R 218; Clarkson v The Queen (2011) 32 VR 361; DPP v Macarthur [2019] VSCA 71; Mill v The Queen (1988) 166 CLR 59; Director of Public Prosecutions v Grabovac [1998] 1 VR 664; Director of Public Prosecutions v Jones (2013) 40 VR 267; Worboyes v The Queen [2021] VSCA 169.

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Counsel
Appellant:		Mr R Nathwani and Ms H Canham
Respondent:		Ms J Warren
Solicitors
Appellant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KAYE JA:

In February 2022, the appellant pleaded guilty in the County Court to five charges on an indictment, namely, attempted trafficking in a drug of dependence, trafficking in a drug of dependence, being a prohibited person in possession of a firearm, theft and knowingly dealing with the proceeds of crime. He also pleaded guilty to three related summary offences, namely, dangerous driving, unlicenced driving, and driving while exceeding the prescribed concentration of drugs.
After a plea made on his behalf, the appellant was sentenced to a total effective sentence of 6 years and 3 months’ imprisonment with a non-parole period of 4 years and 3 months. That sentence was constituted as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempting to traffick in a drug of dependence	15 years	3 years and 6 months	Base
2	Theft	10 years	1 year	6 months
3	Prohibited person possess a firearm	10 years	2 years and 6 months	12 months
4	Traffick in a drug of dependence	15 years	9 months	2 months
5	Knowingly deal with proceeds of crime	15 years	18 months	6 months
RSO	Drive in a manner dangerous	2 years	12 months	6 months
RSO	Drive whilst unlicenced	6 months	3 months	1 month
RSO	Drive motor vehicle while exceeding prescribed drug concentration	12 penalty units	$750 fine	–
Total Effective Sentence:		6 years and 3 months’ imprisonment
Non-Parole Period:		4 years 3 months’ imprisonment
Pre-sentence Detention Declared:		603 days
Section 6AAA Statement:		8 years’ imprisonment Non-Parole Period 6 years
Other Relevant Orders: 1. Summary charge 7 – Licence cancelled, disqualified for 6 months. 2. Summary charge 12 – Licence cancelled, disqualified for 12 months.

The appellant sought leave to appeal on the ground that the individual sentence on charge 1, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive. The application initially came before a single judge of this Court, who gave leave to the appellant to appeal on the grounds that the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive on the basis that the judge erred in the application of the principle of totality. The judge refused the appellant leave to appeal in respect of the base sentence imposed on charge 1.[1]
[1]De Luca v The King [2022] VSCA 224 (Kyrou JA).

Circumstances of the offending

Between December 2018 and September 2019, Victoria Police conducted an investigation into a syndicate that was responsible for the importation of border-controlled substances and trafficking in drugs of dependence. The individuals, whose activities were the subject of the investigation, included the appellant, Ruslan Abdullayev, Mathew Gray and Domenic Luzza. As part of the investigation, a number of individuals were the subject of lawful intercepts, as a result of which the police became aware that Luzza was tracking a consignment on the Direct Freight Express website.
The consignment had been ordered from a business in Altona and was addressed to ‘Peter Davies’ at an address in Pascoe Vale. It was subsequently established that the Pascoe Vale address was that of a defunct business, and that no person named Peter Davies was linked to the consignment.
On 12 August 2019, police executed a search warrant at the Direct Freight Express warehouse where the consignment was being held. They found that the consignment consisted of eight 25 litre plastic drums which contained a clear liquid substance packaged in cardboard boxes. A subsequent examination at the Victorian Police Forensic Services confirmed the substance to be 1,4-Butanediol. The weight of the substance in the drums was 200.2 kilograms. At the time of the offending, a commercial quantity of 1,4-Butanediol was 2 kilograms, and a large commercial quantity was 20 kilograms. The police substituted the substance with similar plastic drums containing water, and repackaged them in the original cardboard boxes. The police then arranged a controlled delivery of the drums to the Pascoe Vale address.
On 13 August 2019, Gray attended the delivery address in Pascoe Vale. A police covert operative, who was acting as the driver of the delivery truck, telephoned the number on the consignment and spoke with a person who purported to be ‘Peter Davies’. One minute later, Abdullayev telephoned the appellant utilising a cell tower located in the Pascoe Vale area. Immediately after that telephone call, the appellant attempted to call Gray, and when that call was not answered, he called again. Gray answered the telephone and had a short conversation with the appellant. The mobile telephone tower located Gray in the Pascoe Vale area and the appellant in the Prahran area. A short time later, Gray exited the address at Pascoe Vale, approached the delivery truck, and assisted the driver (the covert operative) to unload the eight boxes and place them in the Pascoe Vale address. The prosecution case was that Abdullayev answered the telephone call from the delivery person, using the pseudonym ‘Peter Davies’, and he then called the appellant who in turn called Gray, so that Gray would meet the delivery driver.
Shortly after the eight boxes had been unloaded, Gray telephoned the appellant, who in turn telephoned Abdullayev. Two minutes later, Abdullayev pulled up outside the Pascoe Vale address in a van and called Gray to tell him that he was there. Abdullayev then reversed the van into the delivery address, and he and Gray loaded the eight boxes into the van. As Abdullayev drove away with the boxes, he called the appellant’s telephone number three times. The appellant’s phone was then registering at telephone towers in Prahran and Richmond.
At about 3:05 pm, approximately one hour after the consignment had been delivered to the Pascoe Vale address, Abdullayev parked outside the appellant’s home address in Kew East. At that time the appellant was using a stolen black Volkswagen Golf vehicle (charge 2, theft). About ten minutes later, the appellant exited the Kew East address and spoke with Abdullayev who was seated in the van. The appellant then placed an item in the Volkswagen vehicle, went inside his house, and returned carrying a white box which he showed to Abdullayev. The appellant then put the box in the Volkswagen, and entered the van with Abdullayev. A few minutes later the appellant alighted from the van and got into the Volkswagen vehicle.
Subsequently, at 3:55 pm, Gray contacted the appellant by telephone. Following that call, the appellant and Abdullayev drove in their respective vehicles to Abdullayev’s home in Reservoir. Abdullayev parked his van in the driveway and the appellant parked the Volkswagen Golf in the street. They then went to the side and rear doors of the van, before entering Abdullayev’s home. The appellant then drove away, but returned five minutes later. Abdullayev called the appellant’s mobile telephone. About ten minutes later, Abdullayev and the appellant each took a box from the van inside the house. The prosecution case was that, when the appellant and Abdullayev were inside the house, they discovered that the drums in the boxes contained water. They then placed the two boxes with the two drums back in the van, got into their respective vehicles and drove to another street in Reservoir where Abdullayev entered the appellant’s vehicle.
The foregoing events were the subject of charge 1 on the indictment (attempted trafficking in a drug of dependence).
At about 4:34 pm on the same day, the consignment telephone number contacted the appellant’s mobile phone. At the same time, police investigators moved in to intercept the Volkswagen Golf vehicle and to arrest Abdullayev and the appellant. Upon observing the police, the appellant reversed the Volkswagen vehicle at a fast rate of speed. In doing so, he collided with a vehicle driven by a member of the public, Ian Edmonds. As a result of the collision, Mr Edmonds sustained fractured ribs and a fracture of his right thumb. His vehicle, which was valued at $35,000, was extensively damaged and was written off. At the time of the collision, the appellant was unlicenced, and he was under the influence of methylamphetamine. The circumstances in which the appellant drove and collided with Mr Edmonds’ vehicle were the subject of the three summary charges (driving in a manner dangerous to the public, unlicenced driving and driving a vehicle under the influence of methylamphetamine).
Upon being arrested, the appellant and the Volkswagen were searched. The appellant was found to be in possession of a small bag that contained a white crystal substance. On searching the Volkswagen vehicle, police located the following items: a loaded .22 calibre semi-automatic pistol containing ten rounds; an OPPO mobile telephone; two iPhones; $6,000 cash (which is part of the proceeds of crime that were the subject of charge 5 on the indictment); a zip lock bag containing a white crystal substance; and a quantity of loose white crystal substance. At that time the appellant was a prohibited person under the Firearms Act. His possession of the semi-automatic pistol was the subject of charge 3 on the indictment (prohibited person in possession of a firearm). The OPPO mobile telephone had been used for the consignment telephone number. The prosecution case was that the person who answered the number was Abdullayev.
After the appellant’s arrest, police executed a search warrant at his residential premises in Kew East. During the search they located the following items: digital scales; two bags containing a white crystal powder; and a box for the OPPO mobile phone. The white crystal substance, that was seized from the Volkswagen vehicle, from the appellant and from his home, was found to be methylamphetamine, with a combined total weight of 26.1 grams. The appellant’s possession of the substance was the subject of charge 4 (trafficking in a drug of dependence). A traffickable quantity of the substance is 3 grams.
Subsequently, the Volkswagen was subjected to a more thorough search. It was ascertained that the vehicle had been stolen approximately nine days earlier, and that ‘cloned’ number plates had been put on it. In the course of the search, the police located the original number plates of the Volkswagen, multiple cloned number plates, the appellant’s wallet containing $655 in cash, a Blackberry telephone, a money counter and a vacuum sealer and a white box. Charge 5 (knowingly dealing with the proceeds of crime) concerns the $6,000 cash that was located on the initial search of the vehicle, and the $655 that was found in the appellant’s wallet.
Following his arrest on 13 August 2019, the appellant was remanded in custody. He was subsequently released on bail on 24 March 2020. On 5 April 2021, his bail was revoked.

The appellant’s previous convictions

The appellant has a significant criminal history. During the period of eleven years between August 2008 and June 2019 he had spent nine years and three weeks in prison.
In August 2008, the appellant was before the Melbourne Magistrates’ Court on a number of charges including trafficking a drug of dependence, possession of a prohibited weapon without exemption or approval, and possession of a prohibited substance. He was sentenced to 14 months’ imprisonment, 12 months of which were suspended for a period of two years.
In December 2010, the appellant was sentenced by the County Court to 5 years and 6 months’ imprisonment, with a non-parole period of 3 years, on a number of charges including: trafficking a drug of dependence in a commercial quantity; trafficking a drug of dependence (two charges); dealing with the property that was suspected to be the proceeds of crime; possession of a prohibited weapon; and possessing a drug of dependence (five charges).
In April 2014, the appellant was sentenced by the County Court to 12 months’ imprisonment, with a non-parole period of 4 months, for possession of a drug of dependence and handling stolen goods.
In 2017, the appellant was sentenced, on appeal to the County Court, to 310 days’ imprisonment and a Community Correction Order of 12 months, for a number of offences that included possession of methylamphetamine and other substances, reckless conduct endangering serious injury, theft of a motor vehicle, dangerous driving, unlicenced driving, and failing a drug blood test within three hours of driving.
Finally, on 4 June 2019, just 10 weeks before the current offending, the appellant was sentenced by the Melbourne Magistrates’ Court to a two year Drug Treatment Order in respect of offences that included trafficking heroin, being a prohibited person in possession of a firearm, possession of methylamphetamine, dealing with property which was suspected to be the proceeds of crime, resisting an emergency worker on duty, unlicenced driving, and stating a false name when requested.
At the time of the current offending, the appellant was serving the Drug Treatment Order. Urine tests that he had provided under the order had been positive for methylamphetamine from June 2019 until his arrest on 13 August 2019.
The appellant’s personal circumstances
The appellant was born in June 1988. He is the eldest of three children of his parents. Both of his parents had stable employment, his father being an accountant and his mother a bookkeeper. The appellant was raised in a relatively stable home environment until his middle teenage years. He attended Marcellin College and completed Year 12.
When the appellant was about 15 years of age, his parents separated in what were then difficult circumstances. As a result, the appellant, for some years, did not speak with his father, but subsequently they repaired their relationship.
During his secondary education, the appellant was a satisfactory student until he reached Year 9. At that time he began to use illicit substances, and as a result he lost interest in his school work. At the age of 15 years, he began experimenting with amphetamine, MDMA and cannabis. By the age of 17 years he was using amphetamine and methylamphetamine daily, and by the age of 18 or 19 years he had commenced to use gamma-hydroxybutyrate.
The appellant had commenced working in nightclubs as a disc jockey at the age of 16 years, where he was exposed to the trafficking and use of illicit substances. After he completed high school he worked with a supermarket chain and then in a jewellery shop, following which he sold energy plans as a door-to-door salesman. After leaving school he had intended to commence a Bachelor of Business degree at La Trobe University, but he deferred his commencement of that course for one year. In the meantime, as we have noted, he commenced to accumulate a number of previous convictions which resulted in him spending a large part of the following decade in custody.
Following the appellant’s arrest in August 2019, he was remanded in custody. He was subsequently released on bail on 24 March 2020, on the condition that he reside at The Bridge rehabilitation facility and that he continue with his Drug Treatment Order. On the plea, a report compiled on behalf of The Bridge program, dated 26 June 2020, was tendered. It noted that the appellant then had a positive attitude to the program, and that he was motivated in his efforts towards his rehabilitation. The appellant was released from the residential component of the program after five months, and continued to participate in the balance of the program until he was subsequently arrested and remanded in custody on 5 April 2021 arising from further matters. Subsequently, on 26 May 2021, the Melbourne Magistrates’ Court made an order cancelling the Drug Treatment Order.
As noted, the appellant initially was compliant with the program and he received positive reports for his engagement and treatment in it. However, on 30 March 2021, he was demoted to ‘phase 2’ conditions due to his failure to attend for testing on two occasions and his failure to admit to the use of methamphetamine. After his release from the residential part of the program, he had commenced a relationship with a woman who he had met in the program. However, his girlfriend had relapsed and had begun using illicit substances, and it was in that context that the appellant himself also relapsed.

The plea

In support of the plea, counsel tendered a letter written by the appellant. In that letter the appellant accepted that he is a drug addict, and stated that he engaged in the offending in order to obtain drugs for the purpose of his habit. He said that The Bridge program had been of particular benefit to him and that he had acquired the tools in order to combat his addiction. In addition, he apologised to the driver of the vehicle with which he collided.
The appellant was examined by Ms Pamela Matthews, a forensic psychologist, in January 2022 for the purposes of the plea. Ms Matthews formed the view that the appellant has demonstrated features of a Borderline Personality Disorder as described by the DSM-5. In addition, unsurprisingly, he was diagnosed to have a Stimulant and Sedative Hypnotic Substance Use Disorder. Ms Matthews considered that the appellant’s borderline personality symptoms, his drug use and the offending had been intimately interlinked. She was of the view that the appellant would require long-term support and that he would need to make a long-term commitment in order to be able to maintain abstinence from the use of illicit substances.
The judge was also provided with a report of Ms Karly Doyle, a forensic alcohol and drug specialist, of Beyond Track, dated February 2022. Ms Doyle recorded that the appellant had attended four sessions, by teleconference, from the Metropolitan Remand Centre between 22 December 2021 and 31 January 2022. He had engaged well in those sessions. Ms Doyle considered that he presented with multiple goals and protective factors. In particular, he had the full support of his family and, on his release from custody, he intended to undertake inpatient rehabilitation.
On the plea, counsel for the appellant noted that there was no evidence that the appellant had had direct knowledge of the contents of the eight boxes, and that the appellant had pleaded guilty to charge 1 on the basis that he was aware that there was a real and substantial risk that he was being asked to deal with a drug of dependence. It was submitted that the appellant had played a minor role in the offending, and that the offending was confined to his participation in the trafficking on the afternoon of 13 August 2019.

In mitigation, counsel relied on the appellant’s plea of guilty, which, it was submitted, was made at an early stage in the proceeding, having been entered during the contested committal proceeding. It was further submitted that the plea was of particular utilitarian value, because of the backlog of cases in trials in the court that had accumulated due to the effects of the COVID-19 pandemic. In addition, counsel relied on the delay between the date of the charge and sentence, a period of nearly two and a half years, and on the circumstance that the appellant had spent almost 500 days on remand in the very restricted circumstances which had been imposed in order to prevent the spread of the COVID-19 pandemic in the prisons.

The judge’s reasons for sentence

The judge commenced her reasons for sentence[2] by considering the gravity of the appellant’s offending. In assessing the appellant’s culpability in respect of the charge of attempting to traffick a drug of dependence (charge 1) and the charge of trafficking a drug of dependence (charge 4), the judge considered that although the appellant was not the person who placed the order for the drug, nevertheless he had done all he could to take possession of the substance, and he had taken an active role in the collection of it, being a part of the chain of contact between the delivery service and the recipient (Gray). In addition, although it was Abdullayev who used the OPPO phone, the box that it had come in was found in the appellant’s home, which suggested that the appellant had provided the handset to Abdullayev.[3]
[2]DPP v De Luca [2022] VCC 703 (‘Reasons’).
[3]Ibid [27].
In respect of charge 1, the judge accepted that, in assessing the gravity of the offending, she should take into account the potential financial reward from the sale of the particular drug, namely, 1,4-Butanediol. Her Honour also took into account that the appellant’s role in the offending was more limited than that of Abdullayev. The judge further acknowledged that the appellant was not to be sentenced on the basis that he would receive any of the profits of the sale of the drugs.[4] In respect of charge 2 (theft of the Volkswagen Golf vehicle), the judge noted that although it was not alleged that the appellant was the original thief of the vehicle, he had taken steps to conceal the actual ownership of it by having cloned plates on it.[5]
[4]Ibid [28].
[5]Ibid [29].
The judge considered that charge 3 was a serious offence. The firearm that was found in the appellant’s vehicle was loaded, and the appellant had it with him in the context in which he had been transporting the drug which was the subject of charge 1. The judge accepted that there was no evidence that the appellant had intended to use the weapon, but nevertheless the circumstances of his possession of it placed the offence in a more serious category than that of an offender who had a weapon stored in a cupboard in a house, unloaded.[6] The judge also noted the particular circumstances involved in the three summary offences.[7]
[6]Ibid [30].
[7]Ibid [32].
In mitigation, the judge treated the appellant’s plea as an early plea. Her Honour accepted that the plea of guilty was a matter of significant mitigation because of its utilitarian value in the context of the pandemic. Her Honour also accepted that the appellant had pleaded guilty while being aware that he faced further imprisonment in the more onerous conditions necessitated by the pandemic. The judge took into account that the appellant’s time on remand had been more onerous due to the restrictions that were imposed as a consequence of the pandemic.[8] In addition, the appellant was entitled to a degree of mitigation due to his participation in residential rehabilitation, in accordance with the principles expressed in Akoka v The Queen.[9]
[8]Ibid [60]–[61].
[9][2017] VSCA 214 (‘Akoka’).
In assessing the appellant’s prospects of rehabilitation, the judge noted that the appellant’s capacity for staying out of trouble was clearly linked to his ability to remain free from drugs. While the appellant had insight into the cause of his offending, and he was keen to participate in further residential and other rehabilitation, nevertheless it would be difficult for him to remain abstinent from the use of drugs. Accordingly, the appellant’s prospects of rehabilitation were ‘guarded at best’.[10]
[10]Reasons, [54]–[58].
In conclusion, the judge considered that the sentencing purpose of general deterrence was a powerful consideration in respect of the drug offending, and in respect of the offence of possession of firearms by a prohibited person. The judge was prepared to give ‘somewhat’ less weight to the principle of general deterrence, in view of the nature of the particular drug involved,[11] but nevertheless general deterrence was a matter of ‘real importance’.[12] Although the appellant had been assessed for a Community Correction Order, her Honour concluded that such a sentence would be ‘wholly inadequate’.[13]
[11]Cf DPP (Commonwealth) v Maxwell (2013) 228 A Crim R 218; [2013] VSCA 50 (Maxwell P, Weinberg and Priest JJA).
[12]Ibid [67].
[13]Ibid [68].

Submissions

In support of the revised ground of appeal, counsel for the appellant submitted that by failing to take adequately into account the sentencing principle of totality, the judge imposed a total effective sentence, and a non-parole period, which were each manifestly excessive. In essence, it was submitted that by making orders that 2 years and 8 months’ imprisonment be cumulated on the base sentence imposed on charge 1, the judge failed to adequately take into account a number of mitigating circumstances, including the following: the appellant’s early plea of guilty; the utilitarian value of the pleas to the system of justice in view of the difficulties that have arisen as a result of the COVID-19 pandemic; the more onerous circumstances of the appellant in custody arising from restrictions that had been imposed in order to prevent the spread of the virus within the prison system; the appellant’s role in the offences; the fact that the offending, that was the subject of each of the charges, occurred within a short space of time (two or so hours); the fact that the appellant had spent five months in residential rehabilitation; the appellant’s remorse for his offending; and the delay between the appellant’s arrest and sentencing.
In elaborating on those factors, counsel noted that the offending that was the subject of each charge was confined to a few hours on 13 August 2019, and was also connected in other important ways. In particular, a number of the items that were the subject of charges 4 and 5 were located in the motor vehicle that was the subject of charge 2. There was a close connection between the appellant’s use of the motor vehicle on 13 August 2019 (charge 2), and the three summary charges. Counsel further submitted that, as the prosecution had acknowledged on the plea, the objective gravity of the offences that were the subject of charges 2, 4 and 5 was between low and mid-range.
Counsel thus submitted that, taking into account the interconnected nature of the offending that was the subject of each of the charges, the judge’s orders for cumulation, and the total effective sentence, were manifestly excessive, and failed to accord adequate weight to the sentencing principal of totality.
In response, counsel for the respondent noted that the appellant’s role in the offending that was the subject of charge 1 was significant. The appellant had played an active role in the collection of the consignment and he was part of the chain of contact between the delivery service and the receiver of the consignment. He had previous convictions for trafficking, and at the time of the offence he was subject to a two year term of imprisonment which he was serving by way of a Drug Treatment Order. The amount of the substance, 1,4-Butanediol, was particularly large, and the appellant had done everything that he was required to do in order to participate in the trafficking of that substance. In respect of charge 2, counsel noted that the appellant was in possession of the loaded semi-automatic firearm in his motor vehicle while that vehicle was involved in other offending. The quantity of 26.1 grams of methylamphetamine, that was the subject of charge 4, was particularly significant, that quantity being some eight times the prescribed traffickable quantity of 3 grams. Further, the appellant was in possession of relevant paraphernalia attached to such trafficking. In those circumstances, counsel submitted that the sentence of 9 months’ imprisonment, with a cumulation of 2 months, was quite modest.
Further, counsel for the respondent noted that the appellant, at the age of 34 years, had accumulated a substantial history of previous convictions for offences that were of the same kind of those for which he was sentenced. In addition, the offending in the present case took place some two months after the appellant had been sentenced to 2 years’ imprisonment, to be served by a Drug Treatment Order for similar offending. Counsel submitted that it was unsurprising that the judge thus regarded the appellant’s prospects of rehabilitation as being ‘guarded’, so that the sentencing purpose of specific deterrence was an important consideration.
In conclusion, counsel submitted that the appellant had actively and voluntarily participated in a large scale trafficking enterprise, he had conducted his own trafficking enterprise, he had been in possession of a loaded firearm, and he had driven a stolen vehicle while unlicenced and while affected by drugs. In those circumstances, it was submitted, the total effective sentence and the non-parole period were each appropriate, and were not outside the range of sentencing options available to the judge.

Analysis and conclusion

The question, in the present case, is whether by reason of the orders for cumulation made by the judge, the total effective sentence was manifestly excessive. In order to succeed on that ground, the appellant must demonstrate that the sentence was wholly outside the range of sentencing options available to the judge. In other words, it must be established that the sentence, that is the subject of the ground of appeal, was so excessive as to bespeak error by the judge in the exercise of the sentencing discretion, notwithstanding that no specific error may be identified in her Honour’s reasons for sentence.[14]
[14]Clarkson v The Queen (2011) 32 VR 361, 364 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In a case such as this, where the ground of appeal does not seek to impugn any of the individual sentences imposed by the judge, the question is whether the judge failed adequately to take into account the sentencing principle of totality to the extent that it resulted in a sentence that was wholly outside the range of sentences available in the circumstances of the case. In essence, the totality principle has the effect that, in making orders for cumulation or concurrency, the judge must examine the total effective sentence to ensure that it reflects the overall criminality for which the offender is to be sentenced, while taking into account and giving appropriate weight to the relevant mitigating circumstances in the case.[15]
[15]Mill v The Queen (1988) 166 CLR 59, 62–3 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70; Director of Public Prosecutions v Grabovac [1998] 1 VR 664, 676–680 (Ormiston JA); Director of Public Prosecutions v Jones (2013) 40 VR 267, 288 [90] (Redlich and Priest JJA).
In the present case, the appellant did not seek to impugn the sentences imposed on each of charges 2 to 5 or the three summary charges. As mentioned, the appellant was not granted leave to appeal against the sentence of 3 years and 6 months’ imprisonment imposed on charge 1, which was the base sentence. The present appeal is made on the basis that although each of the sentences imposed on the individual charges were appropriate, nevertheless the total effective sentence was manifestly excessive, due to the orders for accumulation made by the judge, taking into account the totality principle to which we have just referred.
In submitting that the judge had failed to take that principle into account, counsel for the appellant placed significant emphasis on the fact that the offending, that was the subject of each of the charges, took place in a relatively short period of a few hours on one day (13 August 2019). Counsel also placed some emphasis on the fact that there was a physical connection between the offences, in that a number of them occurred in, or the evidence relating to them was located in, the stolen motor vehicle that was the subject of charge 2.
Certainly, there was a temporal connection between each of the charges, in that they each occurred over a period of two and a half hours on the same day. In addition, a number of the offences were in a sense physically connected, in that they took place in or about the stolen vehicle driven by the appellant. Those points were relevant to an assessment of the total effective sentence. However, notwithstanding that consideration, the fact remains that, in sentencing the appellant, it was necessary to take into account that each offence, committed by the appellant, added materially to the totality of his criminal offending.
In the absence of charge 2, the fact that the appellant was driving a stolen vehicle when committing the offences that were the subject of charges 1, 3 and 4, would ordinarily aggravate the gravity of each of those offences. In the present case, the judge, of course, did not take that circumstance into account, since the appellant’s use of the stolen vehicle was the subject of charge 2. However, in that light, the fact that the appellant was then using a stolen vehicle added measurably to the overall criminality of the appellant’s offending, which was required to be reflected in an appropriate order for cumulation made in respect of that charge.
Similarly, in the absence of charge 3, the circumstance that the appellant then had in his possession, and close at hand, a semi-automatic pistol, that was loaded with ten live rounds of ammunition, would have substantially compounded the offending by the appellant that was the subject of charges 1, 2 and 4. As the appellant’s possession of that firearm was the subject of a separate charge, the judge correctly did not take into account as an aggravating circumstance in respect of the other charges. However, the appellant’s possession of that loaded firearm at the time did add measurably to the overall criminality of the offending, and it was appropriate that that additional criminality be reflected sufficiently both in the individual sentence imposed on charge 3, and in the order for cumulation made in respect of it.
Those observations do not, of course, mean that it was not necessary for the judge to sufficiently tailor the orders for cumulation so that the total effective sentence imposed on the appellant was not excessive. However, in making such orders, it was important for the judge to take into account the extent to which the offending, that was the subject of each individual charge, contributed to the overall criminality of the conduct that was the subject of each of the charges.
In considering whether the total effective sentence did more than reflect the totality of the appellant’s criminal conduct, it is important to take into account that, notwithstanding that that conduct occurred in a relatively short period of time, nevertheless, taken together, the individual offences committed by the appellant constituted serious offending by him. In short, the appellant trafficked in a significant quantity of a prohibited substance (charge 1), he attempted to traffick a quantity of methylamphetamine that was eight times the traffickable quantity (charge 4), while doing so he used a stolen motor vehicle (charge 2) and, being a prohibited person, he had then in his possession a loaded semi-automatic handgun (charge 3), and he was also in the possession of $6,650 which was the proceeds of crime (charge 5).
Importantly, the appellant had a number of previous convictions in respect of each of those offences, or cognate offences. In particular, he had three previous convictions for trafficking in a prohibited substance, one of which was for trafficking in a commercial quantity of such a substance. The appellant had one previous conviction for the theft of a motor vehicle, and also another previous conviction for dishonesty. He had been sentenced twice for knowingly dealing with the proceeds of crime, and three times for being a prohibited person in possession of a firearm. In addition, he had previous convictions in respect of each of the three summary charges, including a previous conviction for dangerous driving in 2017. At the time at which the appellant committed the offences that are the subject of the present appeal, he had, only two months previously, commenced to serve a Drug Treatment Order in respect of a number of serious criminal charges, including trafficking heroin, being a prohibited person in possession of a firearm, and knowingly dealing with the proceeds of crime.
In those circumstances, it was necessary that the total effective sentence reflect the fact that the appellant had a recent and very substantial record for engaging in the same kind of offending, notwithstanding that he had previously served a number of terms of imprisonment for such offending. As the judge understandably concluded, the appellant’s prospects of rehabilitation were, at best, ‘guarded’.[16] Accordingly, it was necessary that the sentence be such as to deter the appellant from engaging in further such offending.
[16]Reasons, [58].
As counsel for the appellant has correctly pointed out, there were a number of mitigating circumstances, each of which were referred to in the judge’s sentencing reasons. The appellant’s plea was an early plea, and, in the context of the COVID-19 pandemic, it was of particular utilitarian value.[17] At the time at which he was sentenced, the conditions of incarceration that had been imposed by the authorities to prevent the spread of the COVID-19 virus in the prison population, had the effect that the appellant’s sentence of imprisonment would be served in quite onerous circumstances. In addition, the appellant had spent a number of months in residential rehabilitation, which was to be taken into account in accordance with the principles discussed by this Court in Akoka. Finally, there had been a substantial delay between the appellant’s arrest and his sentencing. During that time, he had made conscientious efforts to participate in The Bridge program, albeit that ultimately, after his release from the residential component of that program, he relapsed and returned to using drugs.
[17]Worboyes v The Queen [2021] VSCA 169, [35]–[39] (Priest, Kaye and T Forrest JJA).
Each of those mitigating circumstances were relevant to the proper exercise of the sentencing discretion in the present case. Nevertheless, the appellant’s offending in the present case was serious, particularly in view of the number and nature of his previous convictions for similar offending. In sentencing for offences of the kind committed by the appellant, and in particular the offences that were the subject of charges 1 and 4, general deterrence assumes particular prominence. It is necessary that the sentences imposed on such offences, and the total effective sentence, be sufficient to deter others who might be tempted by the substantial rewards that are derived from engaging in trading in illegal drugs. It is important in such cases that the sentence imposed be sufficient to bring home to would-be offenders the clear message that if they engage in such offending, and if they are apprehended, they will pay a significant price in terms of the loss of their freedom to live in society.

Taking into account the overall gravity of the offending committed by the appellant, his previous convictions, and the sentencing purposes of general deterrence, denunciation and specific deterrence, while giving appropriate weight to the mitigating circumstances relied on, we are not persuaded that the total effective sentence of 6 years and 3 months’ imprisonment, and the non-parole period of 4 years and 3 months’ imprisonment, were manifestly excessive. To the contrary, in our view, the individual sentences imposed by the judge, the orders for cumulation, and the total effective sentence and the non-parole period were each properly within the range of sentences available to the judge in the circumstances of this case.
It follows that the appellant has failed to make out the ground of appeal relied on. Accordingly, the appeal must be dismissed.

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[2023] VSCA 44

9 March 2023