Fenton v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0019

NATHAN FENTON	Applicant
v
THE KING	Respondent

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JUDGES:	Emerton P and Boyce JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2025
DATE OF JUDGMENT:	10 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 168
JUDGMENT APPEALED FROM:	[2024] VCC 2023 (Judge Moglia)

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CRIMINAL LAW – Appeal – Application for leave to appeal – Sentence – Trafficking drug of a dependence – Possession of counterfeit money – Whether judge erred in application of parity principle – Whether discrepancy between co-offenders’ sentences manifestly inadequate – Whether individual sentences manifestly excessive – Where judge took into account time spent at residential rehabilitation program while on bail – Whether appropriate weight given to established rehabilitation – Where offender had prior conviction for drug trafficking – Application for leave to appeal refused.

Akoka v The Queen [2017] VSCA 214, referred to.

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Counsel
Applicant:		Mr W Barker
Respondent:		Ms K Hamill and Mr J Sutherland
Solicitors
Applicant:	Stephen Andrianakis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BOYCE JA:

Introduction

On 5 June 2024, the applicant pleaded guilty to one charge of trafficking in a drug of dependence, one charge of possessing counterfeit money, and related summary offences of failing to comply with a direction and dealing with property reasonably suspected to be proceeds of crime.[1]
[1]The applicant had initially made an application for a sentence indication on 30 May 2024, which was refused.
On 11 December 2024, the applicant was sentenced in the County Court of Victoria as follows:

Charge	Offence	Max Penalty	Sentence	Commencement/ Cumulation
1	Trafficking in a drug of dependence	15 years	1 year 10 months	Base
2	Possess counterfeit money (Cth)	10 years	1 year 1 month	Commences 9 months prior to completion of non-parole period
Related summary offences
RSO 4	Fail to comply with direction to assist	2 years	4 months	1 month
RSO 7	Deal with property reasonably suspected to be proceeds of crime	2 years	3 months	Nil
Total Effective Sentence (State): Non-Parole Period:		1 year 11 months’ imprisonment 1 year 2 months’ imprisonment
Total Effective Sentence (Cth): Non-Parole Period:		1 year 1 month imprisonment
Total Effective Sentence (State & Cth): Non-Parole Period:		1 year 11 months’ imprisonment (4 months of the Cth sentence to be served following completion of State non-parole period)
Pre-sentence Detention Declared:		108 days
Section 6AAA Statement:		Total Effective Sentence: 3 years 4 months’ Non-Parole Period: 2 years 1 month
Other Relevant Orders: Forfeiture of 3 x vacuum sealed bundles of AUD cash totalling 29,300 (counterfeit money)

The applicant was sentenced at the same time as his co-offenders, Thomas Cummins (‘Cummins’) and Callan Brilliant (‘Brilliant’). As the applicant’s contentions in this appeal are largely based on a comparison of the applicant’s sentence with that of Brilliant, it is convenient to set out Brilliant’s sentence in full:

Charge	Offence	Max Penalty	Sentence	Commencement/ Cumulation
1	Trafficking in a drug of dependence	15 years	2 years 2 months	Base
2	Theft	10 years	1 year	4 months
3	Handle stolen goods	15 years	6 months	1 month
4	Handle stolen goods	15 years	6 months	1 month
5	Possess counterfeit money (Cth)	10 years	9 months	Commences 7 months prior to completion of non-parole period
RSO 7	Possess prohibited weapon	2 years	4 months	2 months
RSO 8	Fail to comply with direction to assist	2 years	6 months	2 months
RSO 16	Deal with property reasonably suspected to be proceeds of crime	2 years	3 months	Nil
Total Effective Sentence (State): Non-Parole Period:		2 years 10 months’ imprisonment 1 year 10 months’ imprisonment
Total Effective Sentence (Cth): Non-Parole Period:		9 months’ imprisonment
Total Effective Sentence (State & Cth): Non-Parole Period:		2 years 10 months’ imprisonment (2 months of the Cth sentence to be served following completion of State non-parole period)
Pre-sentence Detention Declared:		556 days
Section 6AAA Statement:		Total Effective Sentence 3 years 9 months’ Non-Parole Period 2 years 6 months’
Other Relevant Orders: N/A

Proposed grounds of appeal

The applicant seeks leave to appeal against his sentence on the followings grounds:
Ground 1: The learned sentencing judge erred in applying parity between the applicant and accused Brilliant:
The discrepancy between the sentence of the applicant and Brilliant is inadequate taking into account the differences in the charge, and the significantly different circumstances of each.
Ground 2: The individual sentences for charge 1 and charge 2 are manifestly excessive having regard to the overall seriousness of the offences and the applicant’s significant factors in mitigation.

Circumstances of the offending

The agreed basis for the applicant’s guilty plea was set out in the Revised Summary of Prosecution Opening dated 27 September 2024.
The applicant and co-offenders resided together in a property in Greenvale. On 22 February 2022, police executed a search warrant at the property. Upon entry, police found Cummins seated in the lounge room. The applicant and Brilliant were also present in the house.
Police found a large quantity of methylamphetamine in the lounge room and elsewhere in the house. 703.5 g of methylamphetamine was found in the lounge room, 48.3 g in the drawer of a table, 27.8 g in a kitchen cupboard, 0.7 g on a coffee table and 2.5 g in Cummins’ bedroom. In the kitchen, police found a ledger book listing amounts of money owed by named persons and prices for methylamphetamine. The applicant’s fingerprints were later identified on the ledger book. CCTV footage of the property for the period between 10 February and 22 February 2022 showed numbers of people attending the house at all hours of the day.
The police seized various items from the applicant’s bedroom, including $2,100 in cash suspected to be the proceeds of crime (summary charge 7) and bundles of counterfeit money totalling $29,300 (charge 2).
Three zip lock bags containing 4.3 g of methylamphetamine and counterfeit currency were also found in Brilliant’s car parked at the property.
Police obtained a Stored Communications warrant in relation to the offenders’ mobile telephone services. The applicant refused to comply with a direction under s 465AAA(4) of the Crimes Act 1958 to provide access to his mobile device (summary charge 4). However, messages related to drug-trafficking were found on Cummins’ phone and messages about drug-related activities connected the applicant to Cummins.
Police also executed search warrants at storage units used by Brilliant and Cummins and seized more property, including stolen goods, items that were the proceeds of crime, a notebook ledger detailing apparent drug transactions and a prohibited weapon.
All three offenders were arrested on 22 February 2022 and taken to Craigieburn Police Station, where they participated in formal Records of Interview. The applicant told police that he had nothing to do with the property and gave ‘no comment’ answers to most of the questions put to him.
The prosecution case was that the applicant and his co-offenders had entered into an agreement to traffick in methylamphetamine. The prosecution alleged, and by his plea the applicant accepted, that he knowingly trafficked 125–175 g of methylamphetamine (charge 1). The trafficking charge was for a single date, ‘on or about the 22nd day of February 2022’, being the date upon which the warrant was executed at the Greenvale property and the methylamphetamine was found by police.
Brilliant was also charged with trafficking 125–175 g of a drug of dependence, but he was charged on a ‘between dates’ basis, because there was evidence that he sold drugs to a person on a date prior to 22 February 2022. Cummins was charged with trafficking a commercial quantity of a drug of dependence.
The applicant was granted bail on 24 May 2022. Brilliant was also granted bail, but his bail was revoked due to further offending.
At the plea hearing, the applicant emphasised his rehabilitation during the period that he was on bail. He had spent six months undertaking a residential rehabilitation program at The Cottage in Shepparton. He was subsequently abstinent, focussed on rebuilding his family relationships and pursuing stable employment. He relied on his successful re-engagement with family and work after being granted bail, and emphasised the risk of undermining his rehabilitation progress if a further term of imprisonment was imposed. The applicant’s father and partner gave evidence of his progress.
The applicant submitted to the sentencing judge that he should not be returned to custody and that a community correction order (‘CCO’) should instead be imposed, in addition to the 100 day period of imprisonment he had already served.

Sentencing reasons[2]

[2]Director of Public Prosecutions (Cth) v Cummins [2024] VCC 2023 (‘Reasons’).

The Reasons deal with the circumstances and sentences of all three offenders.
The judge commenced by setting out the offenders’ personal circumstances. His Honour recorded that the applicant began experimenting with drugs in his teenage years, in a family environment in which he was parented in a ‘flexible’ manner and enjoyed a ‘degree of freedom’.[3] The applicant qualified as a plumber at the age of 22 and secured good work on building sites throughout his twenties, developing skills in working with cranes.[4] He has two children with his current partner, one of whom was born following the offending while the applicant was on bail.[5]
[3]Reasons, [41].
[4]Reasons, [42].
[5]Reasons, [42].
The judge set out the applicant’s criminal history as follows:
You have a relevant criminal history commencing in 2011. In 2013, you were placed on a therapeutic community correction order for driving, dishonesty and drug related offences. In 2014, you were imprisoned for similar, including the breach of the 2013 order. In 2019, you were imprisoned again for similar, as you were in 2020. In 2021, you were imprisoned for 12 months for trafficking drugs and related offences, and later fined for a breach of parole in respect of that sentence. All of that most recent history occurring within the 12 months before the current offending.[6]
[6]Reasons, [43].
The judge recorded that following the grant of bail in May 2022, the applicant participated in a six month residential drug-rehabilitation program at The Cottage in Shepparton.[7] His Honour accepted that the applicant had demonstrated a desire and willingness to rid himself of drugs and had engaged well in the program,[8] participating in counselling sessions.[9]
[7]Reasons, [44].
[8]Reasons, [44].
[9]Reasons, [45].
The judge had regard to the psychological report tendered on the plea prepared by Mr Luke Armstrong, who assessed the applicant as having a severe stimulant use disorder and suggested that he displayed features of a personality disorder.[10] His Honour accepted Mr Armstrong’s opinion that the applicant’s involvement with his family, along with his pro-social activities and work, were protective and positive developments,[11] and that imprisonment would pose risks to both the applicant’s progress and to his young children.[12] The judge also accepted that the character references tendered by the applicant reflected his ‘commitment to family’ and ‘positive attitude’ to his continued rehabilitation.[13]
[10]Reasons, [46].
[11]Reasons, [46].
[12]Reasons, [47].
[13]Reasons, [48].
The judge further accepted that despite its lateness, the applicant’s guilty plea reflected remorse and an appreciation of the effects of his offending,[14] and that the applicant had worked hard since leaving The Cottage, and had purchased expensive crane equipment to pursue work as a crane operator.[15] In these circumstances imprisonment would be ‘difficult’ for the applicant and his family, but this hardship was only one relevant consideration given the seriousness of his offending.[16]
[14]Reasons, [48].
[15]Reasons, [49].
[16]Reasons, [49].
As for Brilliant, the judge recorded that he had a good childhood growing up in Melbourne, but struggled with ADHD.[17] He left school in Year 10.[18] His behaviour was observed to be troubling, but he committed himself to working.[19] He worked as a plasterer, and in plumbing and construction.[20] In 2015, he commenced his own business.[21] However, this was undermined by his drug use. [22] He had begun smoking methylamphetamine as a teenager in nightclubs and this habit later became more serious.[23] More recently, he had begun using GHB.[24]
[17]Reasons, [34].
[18]Reasons, [34].
[19]Reasons, [34].
[20]Reasons, [34].
[21]Reasons, [34].
[22]Reasons, [34].
[23]Reasons, [34].
[24]Reasons, [34].
The judge further recorded the opinion of the psychologist, Mr Simmons, that Brilliant’s experience of ADHD and perhaps childhood trauma may have left him vulnerable to substance abuse. The judge accepted the opinion that, having regard to Brilliant’s history of offending, his prospects for rehabilitation were likely to be ‘guarded’.[25]
[25]Reasons, [35].
The judge found Brilliant’s criminal history to be relevant and significant.[26] He was before the courts from 2012 for drugs and weapons offences, and was placed on a CCO, which included a treatment condition. Similar offending, including breaches of court orders, had continued since then. Methylamphetamine featured in that history. In 2018, and again in 2019, Brilliant was imprisoned for possession of methylamphetamine and related offences. In 2020, he was imprisoned for a range of offences, including forgery and possession of drugs. However, he had no convictions for drug trafficking.
[26]Reasons, [37].
As to the gravity of the offending, the judge observed that the maximum penalty for trafficking simpliciter was 15 years’ imprisonment and 10 years’ imprisonment for possessing counterfeit money.[27] The judge found the trafficking offences of the applicant and his co-offenders to be ‘grave examples of trafficking’ and the moral culpability of each of them to be ‘high’.[28] His Honour said:
[T]rafficking in these quantities of drugs causes real harm to our community. Your offending was reasonably sophisticated by way of the agreement you had to engage in that process. It involved planning by each of you. The quantities of drugs you each trafficked, different as they are, were of significant value and I find that quite apart from any addiction with which you suffered at the time, you engaged in that trafficking for profit. I will, of course, have regard to the different quantities alleged against each of you, and the time over which each of you were alleged to have offended, as reflected in the charges.[29]
[27]Reasons, [50].
[28]Reasons, [52].
[29]Reasons, [51].
As for the non-trafficking offences, the judge found that each of the offences involved ‘significant degrees of dishonesty and a disregard of the rights of other members of the community’.[30] Ultimately, the totality of the offending committed by each of the men reflected their ‘descent into a significant and multi-faceted life of crime at the time’.[31]
[30]Reasons, [53].
[31]Reasons, [54].
The judge emphasised the importance of general deterrence, denunciation and just punishment when sentencing for trafficking offences, although he noted the offenders’ drug addictions.[32] His Honour gave weight to the need for specific deterrence and community protection in light of the offenders’ criminal histories.[33]
[32]Reasons, [54].
[33]Reasons, [55].
The judge also had regard to the two and a half year delay in sentencing and the impact that this had on each of the offenders.[34] He referred to the principle of totality and the need to arrive at a proportionate total sentence.[35]
[34]Reasons, [59]–[60].
[35]Reasons, [56].
As to parity, referring to his endeavour to arrive at total sentences proportionate to the offenders’ total offending, the judge said:
In doing so, I have paid particular regard to parity between you, Mr Brilliant and you, Mr Fenton. I note, however, that you, Mr Brilliant, pleaded guilty to a between dates charge of trafficking and you, Mr Fenton on the one day, which will result in some disparity between you.[36]
[36]Reasons, [57].
His Honour went on to say:
Mr Brilliant, you have spent a lengthy period of time on remand, whilst you Mr Fenton and Mr Cummins, have since been on bail. I have had regard to the work you have each done on progressing your rehabilitation and the progress that you have made, actually.
In relation to all three of you, I have given weight in this case to the delay or the time that has passed since the offending, it now being two and a half years. I accept that during this time, at least in relation to you, Mr Cummins and Mr Fenton, the court can see that you have engaged in rehabilitative efforts. I also accept that waiting for sentence will have been stressful for each of you.
I have given weight to the rehabilitation you have achieved and how that reflects on the prospects of your further reform, gaining insight, dealing with ongoing problems, and risks into the future.[37]
[37]Reasons, [58]–[60].
The judge accepted that the applicant had engaged in rehabilitation,[38] and stated that he gave weight to the applicant’s achievements in this regard and how they reflected on prospects of future reform.[39] However, his Honour reasoned that notwithstanding the applicant’s progress, the circumstances of his offending and prior criminal history justified a further custodial sentence.[40]
[38]Reasons, [59].
[39]Reasons, [60].
[40]Reasons, [65].
In accordance with the principle in Akoka v The Queen (‘Akoka’),[41] the judge stated that that he had taken into account that the applicant had spent six months in residential rehabilitation, including a portion of that time in restricted circumstances.[42]
[41][2017] VSCA 214 (‘Akoka’).
[42]Reasons, [88].

Ground 1: Parity

Applicant’s submissions

The applicant submits that the disparity between his sentence and the sentence imposed on Brilliant is manifestly inadequate having regard to the difference in the charges faced by each of them, and their significantly different circumstances.
The applicant submits that while the judge noted the difference in the charges between the offenders, no mention was made of the mitigatory factors raised on behalf of the applicant that could not be relied on by Brilliant, namely:
(1)The fact that the applicant was bailed directly to a six month residential rehabilitation program at The Cottage. Based on the principle in Akoka, the time spent under restrictions at The Cottage should reduce the sentence of imprisonment.
(2)The applicant’s demonstrated excellent prospects for continued rehabilitation and the principle of established rehabilitation based on the following:
(a)the applicant’s six month period of residential rehabilitation at The Cottage;
(b)the further outpatient treatment undertaken by him with various providers, and the provision of clean urine screens;
(c)his repair of familial relationships while on bail;
(d)the birth of a second child with his partner;
(e)the applicant’s return to full-time work as a crane operator;
(f)the significant purchase of a crane for approximately $560,000 to progress his career (borrowing money from family and his partner in order to so);
(g)the applicant’s regular volunteer work;
(h)the applicant’s compliance with bail conditions; and
(i)the existence of strong family support and stable accommodation.
(3)The judge’s findings that the applicant would suffer hardship while in custody, given that his family would struggle without him, and that the rehabilitation achieved by the applicant would be long-lasting, even after a period of custody, making him a lower risk to the community.

The applicant further submits that Brilliant had aggravating factors that did not apply to him, including that:
(a)Brilliant’s bail was revoked for breach of bail conditions after he engaged in further offending, such that his prospects of rehabilitation were worsened and there was an increased need for community protection; and
(b)his trafficking charge was a ‘between dates’ offence.
In oral submissions, the applicant put his case more succinctly. He complained that the four month difference between his sentence for the trafficking offence (22 months) and Brilliant’s sentence for the trafficking offence (26 months) is manifestly inadequate, having regard to his rehabilitation. According to the applicant, the difference of four months simply cannot account for:
(a) the difference in the charges (offending limited to the one day as opposed to offending on ‘between’ dates);
(b) the credit due by reason of this Court’s decision in Akoka for the period of time his liberty was effectively restricted on bail while he resided at The Cottage; and
(c) his very substantial efforts towards rehabilitation during the 30 months that he was on bail.
In short, the applicant argues that the four month difference reveals that the judge did not give appropriate weight to the significant mitigatory matter of the principle of established rehabilitation. The difference of four months can be explained by considerations that do not include any of the mitigatory weight that should have attached to the applicant’s rehabilitation. In the applicant’s submission, the two matters referred to in (a) and (b) above account in full for the four month disparity in the sentences. The credit to which the applicant is entitled for the time spent at The Cottage would account for a significant portion of the four months, with the difference in the charges accounting for the remainder.
While conceding that a strictly mathematical approach to credit for time spent at The Cottage was not appropriate, the applicant pointed to the credit given in The Queen v Eastway,[43] one of the main authorities referred to by this Court in Akoka, which was approximately half the time that the offender spent in a residential facility. In Akoka, this Court went on to discuss a number of other cases in which, at a minimum, 50 per cent of the time that the offenders spent in various residential facilities was credited.[44] On occasion, it was as high as 75 per cent.
[43](New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Mathews J, 19 May 1992).
[44]See, eg, The Queen v Douglas (New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Hidden J, 4 March 1997), cited in Akoka [2017] VSCA 214, [99] (Warren CJ, Kyrou and Redlich JJA).
In this case, it was submitted, during the first and most restrictive part of the applicant’s stay at The Cottage, he had no mobile phone access and no visits. He was isolated from his family and was required to follow a daily regime. He was subjected to urine screens multiple times per week. He complied with all of the requirements and, if anything, went above and beyond them.
The applicant submits that Brilliant did not present with anything like his prospects of rehabilitation, and there was an increased need for specific deterrence in Brilliant’s case. In contrast, relevantly to his own circumstances, in The Queen v Merrett, Piggott and Ferrari, referring to Duncan’s case[45], the Court said that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.[46]
[45]Duncan v The Queen (1983) 9 A Crim R 354.
[46](2007) 14 VR 392, [35] (Maxwell P); [2007] VSCA 1, citing Duncan v The Queen (1983) 9 A Crim R 354.
The applicant submitted that there was therefore a justifiable sense of grievance on his part due to the manifestly inadequate discrepancy between his sentence on the trafficking offence and that of Brillant.

Respondent’s submissions

The respondent rejected any argument, founded on the single passage in the Reasons that referred to the question of parity between the applicant and Brilliant, that the only basis upon which the judge differentiated between the two offenders was by reference to the difference in their trafficking charges. He submitted that the judge properly distinguished the offenders’ respective positions by considering the applicant’s rehabilitation progress and efforts, and by reducing his sentence in accordance with Akoka.
As to whether the disparity in sentences was manifestly inadequate, the respondent drew attention to the greater need for specific deterrence in the applicant’s case because — unlike Brilliant — the applicant had a relevant prior conviction for trafficking in a drug of dependence. It was submitted that the four month difference was appropriate given that both offenders pleaded guilty to the trafficking charges, in relation to the same quantity of the drug, with the same moral culpability and lengthy criminal histories.
In oral submissions, the respondent argued that Brilliant’s ‘between dates’ charge represented only a minor difference, because it reflected a single sale made on a date prior to the execution of the warrant. The sale in question was a sale of 2.9 g to a person who was arrested and admitted to buying drugs from Brilliant. According to the respondent, this had to be compared to the applicant being sentenced for trafficking on the basis of an unknown quantity of methylamphetamine sold, as evidenced in the ‘tick book’ (the ledger book) containing details of earlier sales.
As a result, so it was submitted, the difference between the charges was not as stark as might otherwise appear to be the case. All of the offenders, other than Brilliant, were sentenced on the basis of possession of the amount of methylamphetamine available for sale on the day of the warrant execution. It was not suggested by any of them that they had simply come into possession of this amount of methylamphetamine on that date — it was clear that there had been a process whereby they had been trafficking methylamphetamine for some period of time.
As to the several matters that the applicant had in mitigation which were not available to Brilliant, the respondent submits that when properly analysed, they amount to one thing: the extent of rehabilitation that the applicant has achieved, most likely by virtue of having had that period of residential rehabilitation in The Cottage. While Brilliant could not call upon established rehabilitation because he reoffended when released on bail and was remanded into custody, the judge did recognise that, to the extent that he was able, Brilliant had sought to rehabilitate himself while in custody. The judge referred to the fact that Brilliant was working in horticulture and that he had done the courses that were available to him in custody. Accordingly, the respondent submits, Brilliant was given some credit for seeking to rehabilitate himself while in custody, albeit that for obvious reasons, the steps that he could take were not as significant as the steps that could be taken by the applicant.
As to matters of a personal kind, the respondent submits that the applicant and Brilliant were very similar. They were the same age. They both had matters to call upon in mitigation relating to the manner in which they were brought up. They both had lengthy criminal records, although only the applicant had a prior conviction for trafficking. Both, when they were not serving sentences for their earlier offending, had a degree of good work history, and both of them had similar difficulties with substance abuse. Furthermore, his Honour made the same finding about their moral culpability for this offending.
According to the respondent, the main differences between the two were therefore the applicant’s established rehabilitation and the fact that only the applicant had a relevant prior conviction for trafficking. That conviction was fairly recent. In 2021, the applicant received a 12 month sentence for trafficking. His estimated release date would have been around September 2021. The present offending was in February of 2022. It was conceded by the applicant that this meant that community protection had some relevance in relation to his sentence.

Consideration

The principles relevant to the consideration of ground 1 are well established. The parity principle is founded on the principle of equal justice.[47] Those who commit the same offence should be treated equally, save where differences in the offender’s role, or differences in age, background, prior criminal history and general character justify the imposition of different sentences.
[47]Lowe v The Queen (1984) 154 CLR 606, 610–11 (Mason J); [1984] HCA 46.
This Court has recognised that there will be few cases in which it can interfere with a sentence on the basis of disparity. It has held that such ‘disparity, or lack of it, must be marked or manifest and such as to produce a legitimate and justifiable sense of grievance in the objective observer’,[48] or ‘lead to the appearance in the mind of an objective observer that justice has not been done’.[49]
[48]The Queen v Mercieca [2004] VSCA 170, [17] (Winneke P) (emphasis added), cited in Jok Gar v The King [2024] VSCA 96, [70] (Emerton P and Beach JA).
[49]Alexopoulos v The Queen [2022] VSCA 145, [21] (Macaulay JA) (‘Alexopoulos’) (citations omitted); The Queen v Waugh [2009] VSCA 92, [17] (Nettle JA).
However, where there is a manifest disparity — or lack of a manifest disparity — between sentences, the Court may intervene on appeal regardless of whether the sentence discloses error or is within the permissible range.[50] Error may be inferred from disparity that is not properly explained in the sentencing reasons and may provide a basis for appellate intervention.[51]
[50]Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); [1997] HCA 26; The Queen v Ghareeb [2003] VSCA 111, [26] (Eames JA), citing The Queen v Wilson (2000) 116 A Crim R90, [17] (Chernov JA); [2000] VSCA 202.
[51]Nipoe v The Queen [2020] VSCA 137, [38]–[40] (Maxwell P, Niall and Emerton JJA).
A justifiable sense of grievance may arise where the difference between the sentences is ‘incapable of rational explanation’.[52] The question of whether a ‘justifiable sense of grievance’ arises is determined through consideration of whether ‘there were reasonable grounds for the differentiation — or lack of differentiation, as the case may be — between the appellant and the co-offender’.[53]
[52]Alexopoulos [2022] VSCA 145, [22] (Macaulay JA) (citations omitted).
[53]The Queen v Wolfe [2008] VSCA 284, [9] (Maxwell P), cited in Teng v The Queen (2009) 22 VR 706, [17] (Maxwell P, Ashley JA and Lasry AJA); [2009] VSCA 148; Abdou v The Queen [2015] VSCA 359, [62] (Redlich, Beach JJA and Beale AJA).
Thus, when an appeal is brought on this ground, the test for this Court is whether it was
reasonably open to the sentencing judge to differentiate — or fail to differentiate — between the co-offenders in the way revealed by the sentences when proper weight is given to the similarities and differences in relation to their respective culpability, criminal history and personal circumstances.[54]
[54]Alexopoulos [2022] VSCA 145, [23] (Macaulay JA). See also Teng v The Queen (2009) 22 VR 706; [2009] VSCA 148, citing The Queen v Wolf [2008] VSCA 284, [9] (Maxwell P).
The test does not require the Court on appeal to ‘undertake a line-by-line comparison between the various weightings given to different aspects of the two sentences that are being compared’.[55]
[55]Sharp v The Queen [2018] VSCA 327, [51] (Maxwell P and Niall JA).
In this case, what the applicant essentially asks this Court to do is to find that because the difference in the sentences of imprisonment on the trafficking charges was only four months, the judge must have given no weight or significantly inadequate weight to established rehabilitation. This is predicated upon the four month disparity being effectively consumed by an entitlement to a reduction in sentence based on the time that the applicant spent undertaking rehabilitation at The Cottage (pursuant to the principle in Akoka), and the difference in the charges.
Although the applicant disavows any reliance on a mathematical approach to the task of sentencing, the starting position for his submissions appears to be that he was entitled to at least three months’ reduction in sentence for the time that he spent in The Cottage. While the applicant spent six months in The Cottage, not all of that time was spent in restrictive circumstances. The judge stated that he had taken into account the principle in Akoka and the fact that the applicant had spent six months at The Cottage and a portion of that time in restricted circumstances. Even if it were the case, as the applicant contended, that the credit to which he was entitled pursuant to Akoka was something in the order of 50 per cent of the time that he spent in restricted circumstances, that might be comfortably accommodated within the four month disparity.
Furthermore, the credit available to the applicant by reason of his time at The Cottage must, as with all other sentencing discounts, form part of the application of the instinctive synthesis — it cannot (and should not) be subjected to mathematical analysis. The judge said that he took into account that the applicant had spent time in restrictive circumstances at The Cottage. In so doing, his Honour made it clear that the punitive nature of the applicant’s residency at The Cottage had informed his instinctive synthesis. The judge also made it abundantly clear that he took into account the impressive rehabilitation achieved by the applicant during that period and following.
The applicant’s rehabilitation has indeed been impressive and it was an important sentencing consideration. It appears that the applicant made the most of the opportunities for rehabilitation provided through The Cottage and subsequently. He is to be commended for his efforts. However, it is but one factor in the sentencing synthesis.
What the applicant ignores or downplays in his submissions on parity is the fact that he has a prior conviction for drug trafficking. Brilliant does not. As the respondent pointed out in oral submissions, the applicant’s conviction for trafficking on this occasion came hard on the heels of a term of imprisonment for an earlier conviction for the same thing. This was also a very relevant sentencing consideration and one that was not applicable to Brilliant, notwithstanding that the criminal records of the applicant and Brilliant were not otherwise dissimilar. The prior trafficking conviction underscored the need for specific deterrence in the applicant’s case, notwithstanding his apparent rehabilitation.
As to the difference in the form of the charges against the applicant and Brilliant, we accept the respondent’s submission that there is, in fact, very little substantive difference in the charges. It is obvious from the circumstances of their arrest that each of them was in possession of a significant quantity of methylamphetamine for sale. Hence, they were both charged with trafficking, to which they pleaded guilty.
We are therefore unable to accept the submission made on behalf of the applicant that there is a marked or manifest lack of disparity between his sentence and Brilliant’s sentence so as to produce a legitimate and justifiable sense of grievance. We have no doubt the applicant feels aggrieved, as he is required to serve quite a lengthy prison sentence despite having turned his life around, and made huge strides in rehabilitation to become, in a real sense, a husband and father, and a productive member of the community. It is a shame that the gravity of his offending and his high moral culpability for that offending requires a sentence that sets back his progress, possibly substantially. But that is not a grievance — justifiable in the eyes of the objective observer — that results from the relatively small difference between the prison sentence imposed upon him for trafficking and that imposed upon Brilliant.
We therefore reject the contention that the difference of four months between the sentences for trafficking is incapable of rational explanation.
We would reject ground 1.

Ground Two: Manifest excess

Ground 2 is that the individual sentences for charge 1 and charge 2 were manifestly excessive having regard to the overall seriousness of the offences and the applicant’s significant factors in mitigation.

Applicant’s submissions

The applicant submits that there is commonality between grounds 1 and 2, in that both rely largely on principles of achieved or established rehabilitation, or what might be said to come under the umbrella of ‘delay’ and the efforts and conduct of the applicant in the time that he was on bail.
While the applicant accepts that his offending was serious and called for a term of imprisonment, he submits that the sentences (and the order for commencement of the Commonwealth sentence) were manifestly too long, having regard to the following factors:
(1)the nature and gravity of the offending;
(2)the applicant’s significant progress towards rehabilitation and positive prospects;
(3)the applicant’s genuine remorse;
(4)the guilty plea which, while entered close to trial, was proffered shortly after the prosecution had accepted the pleaded charges;
(5)the reduced weight to be given to specific deterrence given that the applicant had engaged in extensive rehabilitation and the sentencing judge had found that his progress was likely to lead to a successful parole application;
(6)the hardship for the applicant and his family resulting from separation during a custodial sentence; and
(7)the increased burden of the applicant’s time on remand during the COVID-19 pandemic.
As to the gravity of the offending, in relation to charge 1 (trafficking), the applicant concedes that the offence was not minor, but submits that his substantial efforts towards rehabilitation justified the defence’s proposed combination sentence. In relation to charge 2, he argues that while the amount of counterfeit money was significant, it was of low quality and there was no evidence that the applicant had attempted to use it.
The applicant submits that to achieve justice, the sentencing judge could appropriately have imposed a sentence of 100 days of imprisonment (as had already been served on remand) and a CCO.

Respondent’s submissions

The respondent submits that the sentences imposed on both charges were well open and did not fall outside the permissible range of dispositions.
Indeed, the respondent submits that the sentence for charge 1 is best characterised as ‘lenient’ in circumstances where the offending was ‘very serious’, the applicant demonstrated ‘high’ moral culpability, and the judge gave significant weight to denunciation, just punishment, community protection and general and specific deterrence.
The respondent places particular weight on the following unchallenged findings:
(1)the offending was sophisticated and required planning;
(2)the quantity of the drug that the applicant knew he was trafficking had a significant value; and
(3)the applicant engaged in the trafficking for profit.
The respondent also emphasises the applicant’s relevant and recent criminal history, which required weight to be placed on the need for specific deterrence and community protection.
Regarding charge 2, the respondent submits that the sentence, representing just over 10 per cent of the maximum, is ‘unremarkable’ given the significant quantity of counterfeit money involved. Additionally, the orders appropriately reflected the judge’s regard to the totality principle and imposition of a proportionate sentence for the different charges.

The respondent challenges the applicant’s reliance on other cases to contend that a combination sentence was open, noting that this argument did not go to the question of whether the sentence actually imposed was open to the judge as the sentencing decision was grounded in the factual circumstances.

Consideration

As this Court has repeatedly emphasised:
the 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.[56]
[56]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
It is therefore not to the point whether the sentencing judge could ‘appropriately’ have imposed a sentence of 100 days of imprisonment (as had already been served on remand) and a CCO. The question for this Court is whether the sentences imposed on the applicant, having proper regard to the question of parity and all of the other matters that the judge was bound to take into account, were within the range.
We consider that the trafficking sentence was plainly within range. The offending was objectively serious. His Honour took into account all relevant matters, including those specifically relied upon by the applicant: the plea of guilty, delay, hardship, remorse, the burden of imprisonment and the principle of parity, with which we have already dealt. The fact that the sentencing judge moderated the weight to be given to specific deterrence based on his assessment of the applicant’s rehabilitation is also made clear. There is no complaint about the way in which the applicant’s criminal record was taken into account.
The judge had regard to the cases involving combination sentences for trafficking offences that were put forward by the applicant’s counsel, sentencing statistics (such as those published by the Sentencing Advisory Council and discussed at the plea hearing) and sentencing principles, particularly regarding repeat and chronic offending. Again, no complaint is made that the judge failed to have regard to those matters.
We agree with the respondent that the sentence on charge 2, representing just over 10 per cent of the maximum, is ‘unremarkable’ given the significant quantity of counterfeit money involved.
Furthermore, the judge gave consideration to the principle of totality in a manner that was appropriate.
Notwithstanding the impressive steps taken by the applicant to rehabilitate, there is no getting away from the fact that the applicant engaged in very serious criminal conduct. That conduct followed shortly after the conclusion of a term of imprisonment for other serious offending of a similar kind. General deterrence, punishment, denunciation and community protection remained important sentencing considerations. Because of the existence of relevant prior convictions, specific deterrence also retained some importance despite the applicant’s efforts towards rehabilitation.
It follows that we are not persuaded that the sentences imposed on the applicant were manifestly excessive.
Ground 2 is not made out.

Disposition

Neither proposed ground of appeal is made out. The application for leave to appeal the sentences will be refused.
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[2025] VSCA 168

10 July 2025