Hogan v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0198

PAUL HOGAN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and KIDD JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2025
DATE OF JUDGMENT:	26 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 142
JUDGMENT APPEALED FROM:	DPP v Hogan (County Court of Victoria, Judge Carlin, 26 September 2024)

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CRIMINAL LAW – Sentence – Appeal – Trafficking – Possess drug of dependence – Handle stolen goods – Prohibited person possess firearm – Possess explosive substance without excuse – Knowingly deal with proceeds of crime – Total effective sentence 5 years – Non-parole period 3 years 4 months – Whether error in sentencing applicant on basis of a ‘continuing business’ of drug trafficking where sentenced to trafficking on a simpliciter basis confined to a single date – Whether sentence manifestly excessive – Where total cumulation did not reflect degree of overlap between factors relevant both to both trafficking and individual charges.

R V GIRETTI (1986) 24 A CRIM R 112; R V DE SIMONI (1981) 147 CLR 383; LAGO V THE QUEEN [2015] NSWCCA 296; KELLY V THE QUEEN [2018] NSWCCA 44, CONSIDERED.

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Counsel
Applicant:		Mr RF Edney
Respondent:		Mr R Gibson KC
Solicitors
Applicant:	Stephen Andrianakis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
KIDD JA:

Before a judge in the County Court, Paul Hogan (the ‘applicant’) pleaded guilty to a number of indictable offences, set out in the table below.[1]
[1]The following day he pleaded guilty to two related summary charges of possessing a prohibited weapon (summary charges 9 and 13).
Following a plea in mitigation of sentence, the applicant was sentenced to a total effective sentence of 5 years’ imprisonment, with a non-parole period of 3 years and 4 months.[2] The charges and structure of the sentence is reflected in the following table:
[2]DPP v Hogan (County Court of Victoria, Judge Carlin, 26 September 2024) (‘Reasons’).

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking a drug of dependence (methylamphetamine)[3]	15 years	3 years	Base
2	Trafficking a drug of dependence (cocaine)[4]	15 years	6 months	1 month
3	Possession of a drug of dependence (ketamine)[5]	1 year and/or 30 penalty units	$2000 aggregate fine
4	Possession of a drug of dependence (tryptamine)[6]	1 year and/or 30 penalty units
5	Possession of a drug of dependence (oxycodone)[7]	1 year and/or 30 penalty units
6	Handling stolen goods (Stoeger air rifle)[8]	15 years	18 months	3 months
7	Possession of a firearm (Stoeger air rifle)[9]	10 years or 1200 penalty units	3 years	6 months
8	Handling stolen goods (gold necklace and pendant)[10]	15 years	6 months	1 month
9	Possess explosive substance without excuse (nine ‘Bog Roll Battles’ fireworks and ‘255 cake’ fireworks) – rolled-up charge[11]	5 years	$600 fine
10	Knowingly dealing with proceeds of crime $178,255.00)[12]	15 years	3 years	1 year
Related summary offences
Summary charge 9	Possess prohibited weapon (capsicum spray)[13]	2 years or 240 penalty units	2 months	1 month
Summary charge 13	Possess prohibited weapon (taser)[14]	2 years or 240 penalty units	2 months
Total effective sentence:		5 years’
Non-parole period:		3 years and 4 months
Pre-sentence detention declared:		919 days
Section 6AAA Statement:		7 years’ imprisonment with a non-parole period of 5 years’ and 3 months
Other Relevant Orders: 1. Disposal orders 2. Forfeiture orders

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

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

[5]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[6]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[7]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[8]Contrary to s 88(1) of the Crimes Act 1958.

[9]Contrary to s 5(1) of the Firearms Act 1996.

[10]Contrary to s 88(1) of the Crimes Act 1958.

[11]Contrary to s 317(4) of the Crimes Act 1958.

[12]Contrary to s 194(2) of the Crimes Act 1958.

[13]Contrary to s 5AA of the Control of Weapons Act 1990.

[14]Contrary to s 5AA of the Control of Weapons Act 1990.

The applicant seeks leave to appeal on the following proposed grounds of appeal:
(a)Ground 1: the sentencing judge erred by sentencing the applicant on the basis he was engaged in a ‘continuing business’ of drug trafficking in circumstances where the applicant had entered a plea of guilty to trafficking in a drug of dependence on a simpliciter basis confined to a single date.
(b)Ground 2: the sentencing judge erred in finding that the applicant ‘bought methylamphetamine in bulk and then would break it up into smaller amounts, which you would sell to your regular customers, who you presumed would break it up even further and on sell it again’.
(c)Ground 3: the individual sentences, orders for cumulation, non-parole period and total effective sentence are manifestly excessive and breach the principle of totality.
The proposed grounds capture two central themes. First, that the sentencing judge overstated the severity of the drug offence by treating it as an ongoing business when the indictment alleged possession on a single day. Second, that in treating the possession of the money (which underpinned the dealing with proceeds of crime charge) and the possession of the firearm as together demonstrating the ‘commerciality of the enterprise’ in which the applicant was engaged, but also punishing the applicant when it came to sentence on the individual charges (charges 10 and 7 respectively), the sentencing judge punished the applicant more than is proportionate and appropriate to his overall criminality.

The offending

Pursuant to a search warrant, on 22 March 2022 police found the following items in various places in the applicant’s home:
(a)methylamphetamine — 111.9 grams contained in four bags, with a pure weight of 92 grams and a purity between 82–84 percent (charge 1);
(b)cocaine — 14.9 grams contained in three bags, with a purity of 21 percent to 84 percent (charge 2);
(c)ketamine — 2.2 grams contained in two bags, with a purity of 20 percent and 70 percent respectively (charge 3);
(d)tryptamine — 1.8 grams, contained in two bags (charge 4);
(e)oxycodone — contained in 11 tablets of prescription medication (charge 5);
(f)a Stoeger air rifle, stolen from a premises in Eaglehawk and which the applicant was unauthorised to possess (charges 6 and 7);
(g)a gold necklace and pendant, stolen from premises in North Bendigo (charge 8);
(h)nine ‘Bog Roll Battles’ fireworks and one ‘255 Cake’ firework, which the applicant was not authorised to possess (charge 9);
(i)cash in the sum of $178,255 (charge 10);
(j)capsicum spray, which the applicant was unauthorised to possess (summary charge 9); and
(k)a taser (summary charge 13).
The total cash found was $178,255.

Sentencing

The sentencing judge had regard to a number of factors.
First, the sentencing judge found the applicant’s moral culpability for the offending to be high.[15]
[15]Reasons, [40].
Second, her Honour found that the applicant’s offences of trafficking, handling and possessing the stolen firearm, and possessing almost $180,000 in proceeds of crime were the most serious of the offending. The sentencing judge continued:
You were clearly trafficking drugs for profit. Your possession of the cash and firearm demonstrate the commerciality of the enterprise you were engaged in. Accepting that you did not have the requisite intention to traffick a commercial quantity of methylamphetamine, you nevertheless must have realised you were trafficking a significant quantity of the drug. Accepting also that the weight of drugs is not necessarily the most important factor in assessing offence seriousness, in the circumstances of this case the fact you were trafficking almost twice the threshold for a commercial quantity of pure methylamphetamine does make Charge 1 an objectively serious example of trafficking simpliciter. The fact you were charged with trafficking that amount on a single date does not, in my view, reduce the seriousness of the offence as the charge must be seen in the context of a continuing business. Essentially, the methylamphetamine you possessed on that day represented future profits, whereas the $180,000 you possessed represented past profits.[16]
[16]Ibid [37] (citations omitted).
Her Honour also regarded the possession of a firearm offence as relatively serious, stating
[w]hilst I accept that an air rifle is inherently less dangerous than other types of firearms, it is still a weapon capable of inflicting serious harm, and I have no doubt that you had it to protect your stash of drugs and cash.[17]
[17]Ibid [38] (citations omitted).
In commenting on the applicant’s upbringing, the sentencing judge noted that ‘[n]ot only was your offending serious, but there is nothing in your background or psychology which reduces your moral culpability in any significant way’.[18]
[18]Ibid [39].
Her Honour considered that while the applicant’s anxiety may have contributed to his drug use, this was ‘calculated, premeditated offending which occurred against a background of similar prior offending’.[19]
[19]Ibid [39]. Her Honour distinguished this case from that of The Queen v Lacey (2007) 176 A Crim R 331; [2007] VSCA 196, referred to by the applicant’s counsel.
The sentencing judge had regard to current sentencing practices, noting that no two cases are ever truly the same and that ‘the cases to which I was referred are no exception’.[20]
[20]Reasons, [42].
Third, the sentencing judge considered that the applicant was entitled to a significant discount on the sentence for the fact that he pleaded guilty and had offered to plead guilty to the most serious charges at a very early stage.
Fourth, the sentencing judge had regard to the applicant’s prior criminal history. In considering the applicant’s risk of reoffending, the sentencing judge considered that his criminal history did not bode well for his rehabilitation. Despite having support in the community, and being capable of working a job, the applicant had continued to offend in serious ways. Noting that abstinence from drug use while in prison would assist the applicant, the sentencing judge concluded that the prospects of rehabilitation were modest.
Fifth, the sentencing judge took into account delay:
[T]he fact you have had this matter hanging over your head for over two and a half years, despite you indicating at an early stage your willingness to plead guilty to the main charges on the plea indictment. In particular, for all that time you have had the charge of trafficking in a commercial quantity of methylamphetamine hanging over your head only to have it dropped at the last moment. I also take into account the matters I have mentioned as to how you have conducted yourself in prison during the delay, which is some, albeit limited, evidence of rehabilitation.[21]
[21]Reasons, [48].
Finally, the burden of imprisonment was not considered to enliven limb six of R v Verdins[22] in circumstances where there was no evidence that prison would lead to a significant deterioration in the applicant’s mental health.
[22](2007) 16 VR 260; [2007] VSCA 102.

Ground 1

Under his first proposed ground, the applicant submits that the sentencing judge erred by sentencing him on the basis that he was engaged in a ‘continuing business’ of drug trafficking in circumstances where he had entered a plea of guilty to trafficking in a drug of dependence on a simpliciter basis, confined to a single date.
The applicant draws particular attention to the following passage, repeated here for convenience:
The fact you were charged with trafficking that amount on a single date does not, in my view, reduce the seriousness of the offence as the charge must be seen in a context of a continuing business. Essentially, the methylamphetamine you possessed on that day represented future profits, whereas the $180,000 you possessed represented past profits.[23]
[23]Reasons, [37].
The applicant submits that the prosecution had not drawn charge 1 on an R v Giretti[24] (‘Giretti’) basis, nor had the prosecution urged the sentencing judge to sentence the applicant on that basis. By making the finding that she did, the applicant says, the sentencing judge breached the principle in R v De Simoni (‘De Simoni’).[25] The consequence of these errors was to impermissibly elevate the nature and scope of the applicant’s criminality.
[24](1986) 24 A Crim R 112; [1986] VSC 484.
[25](1981) 147 CLR 383; [1981] HCA 31.
The respondent submits that this ground inaccurately conflates the sentencing judge’s finding on the seriousness of the charge with a finding of a continuing enterprise in the Giretti sense. They submit that the finding on the nature of scope of the applicant’s criminality did not infringe the De Simoni principle, and was open in all of the circumstances. This was particularly so as:
(a)the quantity of methylamphetamine involved was significant;
(b)the applicant was engaged in a business of trafficking which involved preparation and concealment;
(c)the applicant was trafficking for a profit. Further, the sentencing judge was not precluded from considering the commerciality of the trafficking with reference to his admissions, the unexplained cash, large quantum of the drug seized and the firearm;[26] and
(d)the applicant had a relevant prior for trafficking and his moral culpability was high.[27]

Consideration

[26]Citing R v Falzon (2018) 264 CLR 361, 366 [1] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); [2018] HCA 29.

[27]Citing Reasons, [40].

Charge 1 on the indictment alleged trafficking in a quantity of methylamphetamine on 22 March 2022 in contravention of s 71AC of the Drugs Poisons and Controlled Substances Act 1981 (the ‘DPCS Act’). Relevantly, s 70(1) of the DPCS Act provides an inclusive definition of ‘traffick’, which includes to ‘sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence’.[28]
[28]DPCS Act, s 70(1)(c).
The single date referred to in the charge — 22 March 2022 — was the date of the police search and it was on that day that the police found the applicant to be in possession of the methylamphetamine and cocaine. By his plea the applicant accepted that he possessed those drugs for the purpose of sale. He was not charged with any trafficking before that date and he was not charged with the sale of any quantity of drugs.
The agreed prosecution summary is relatively sparse on the detail of the offences. In relation to the methylamphetamine and cocaine it was stated that four black vacuum sealed bags containing methylamphetamine and three zip lock bags containing cocaine were found in a locked safe together with $141,800 in cash. Cash totalling a further $36,455 was also found in the house. It was stated in the agreed summary that the total amount of $178,255 was the proceeds of crime. The agreed summary did not specify from which crimes the cash originated.
The material was supplemented in two ways. First, the applicant’s record of interview was tendered on the plea. In it, the applicant made admissions to purchasing the methylamphetamine that was found in his possession for $6,000 and to re-bagging it for sale. He said that he had regular customers who purchased from his house, paying in cash. He denied selling drugs on the street. The drug sales were profitable for him. At a number of points in the interview, the applicant declined to comment when he was asked about the source of the cash. When it was put to him that all of the money had come from drug trafficking, he said that not all the cash would have come from drug sales.
Second, on the plea, counsel for the applicant referred to the applicant’s admissions that he would ‘in effect buy in bulk to save, divided up and sealing up in bags in the way that he did’ and said that it was a single date charge but that the sentencing judge should not sentence in isolation and that the applicant’s admissions needed to be taken ‘contextually’.
Near the end of the plea, the prosecutor submitted that charge 1 was a serious example of trafficking simpliciter and that the air rifle, taser and capsicum spray were items that he used to protect his business as a drug dealer. He said although it was a single day trafficking charge, because of the other items found it must have been a significant business. The prosecutor submitted that the only rational conclusion to be drawn from the cash was that it was obtained from selling drugs. The sentencing judge then observed that charge 1 ‘represented potential future profits’ and the ‘proceeds represents past’, to which the prosecutor agreed. The applicant’s counsel did not make any further submissions in the light of that exchange.
Notwithstanding that charge 1 was a single date offence, the sentencing judge’s conclusion that the applicant was involved in a ‘continuing business’ was open to her and did not involve any mischaracterisation of the seriousness of the offence, nor did it involve punishing the applicant for drug trafficking before 22 March 2022. The sentencing judge was doing no more than characterising the trafficking in relation to the drugs actually found on 22 March 2022.
In reaching this conclusion, the sentencing judge had reference to the firearm and the cash. The applicant was in possession for sale of a significant quantity of methylamphetamine. By his admissions he also admitted to a mode of business which involved friends and associates visiting his home to purchase drugs. It was also open to conclude, to the criminal standard, that the firearm was available to be used and intended to be used for the purpose of protecting the applicant’s criminal enterprise.
The large quantity of cash found that the house might have been relevant to the trafficking charges in two ways. First, on a narrow basis, that the applicant could have had recourse to that cash for living and other expenses and that it was unnecessary to engage in drug trafficking for sustenance. That is, it highlighted that the trafficking was for profit and not merely for personal use or basic sustenance.
Second, on a broader basis, that the cash was the proceeds of past drug trafficking.
Despite the fact that the agreed prosecution summary did not seek to identify the source of the proceeds of crime, once regard is had to how the plea proceeded, it was open to the sentencing judge to rely on the cash on the second, broader basis. That possibility was specifically adverted to by the judge and no submission was made to the contrary. It was consistent with the applicant’s earlier submission to the judge that the surrounding circumstances were relevant to the context of the drug trafficking. The implicit finding that the applicant had made ‘past profits’ from drug trafficking did not entail punishing the applicant for uncharged drug dealing. Rather, it cast a light on the nature of the enterprise conducted by the applicant. His possession of drugs was not an isolated incident but part of an ongoing business.
The possession of drugs for sale on a specific day is not inconsistent with the finding that the person possessing the drugs is involved in a continuing business. There may be other features which give colour to the possession. Further the possession of drugs for sale in a single day does not entail a finding that the drugs were intended to be sold on that day and indeed the quantity might suggest that they would be sold over a period of time.[29] In all of the circumstances it was open to the judge to conclude that the applicant was involved in a continuing business notwithstanding there was no Giretti charge on the indictment.
[29]Velevski v The Queen [2010] VSCA 90, [32] (Habersberger AJA, Buchanan JA, agreeing at [1], Mandie JA agreeing at [2]).

In this respect
[t]here is no breach of the De Simoni principles when the uncharged conduct is used to inform the seriousness of an offence for which the offender is to be sentenced. As Basten JA explained (Hulme and Lathan JJ agreeing) in Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [146]:
a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed.[30]
[30] Lago v The Queen [2015] NSWCCA 296, [49] (Gleeson JA, Button J agreeing at [70], Fagan J agreeing at [71]).
Support for this conclusion can be found in the NSW Court of Criminal Appeal’s decision in Kelly v The Queen.[31] There, the applicant was sentenced by the NSW District Court for an offence of supplying methylamphetamine.[32] Relevantly:
From the information revealed by mobile phone intercepts, from the purity and quantity of the drug the subject of the charge, and from the paraphernalia of drug supply found at the applicant’s home, the sentencing judge was satisfied that the offence charged was not an isolated incident, but rather an aspect of an ongoing business of supplying drugs in the Tamworth area which had been on foot from May to July 2016.[33]
[31][2018] NSWCCA 44.
[32]Contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
[33][2018] NSWCCA 44, [25] (Hidden AJ). The sentencing judge had found that the uncharged conduct was material consistent with a finding that the instant offence was ‘deliberate, determined and planned, in contrast to being on the spur of the moment and out of character’: [41]. This was an inference which could also be drawn from the facts of the offence itself, given the quantity and purity of the drug, the way in which it was concealed in the car, and the paraphernalia of drug supply found at the applicant’s home: [41].
In rejecting the argument that the sentencing judge erred in considering uncharged criminal content to determine that the offence charged was not isolated,[34] Hidden AJ referred to sentencing principles applying to uncharged criminal conduct in such a case:
The applicant stood for sentence for the offence of supplying methylamphetamine on 15 July 2016. However, it was common ground that his Honour was entitled to have regard to uncharged conduct of a similar nature casting light on the context of the offence, so as to demonstrate that the applicant was not entitled to the leniency which he might otherwise have been afforded if the offence were an isolated incident. The uncharged conduct may not be taken into account so as to lead to the imposition of a higher sentence than would be merited for the offence charged. So much has been well established in child sexual assault cases where the offences charged are frequently part of a wider pattern of abuse: see, for example, Holyoak v R (1995) 82 A Crim R 502 at [510]–[511].[35]
[34]Ibid [42].
[35]Ibid [38].
In summary then, although the possession for sale in respect of which the applicant was charged concerned a single day it was open to the sentencing judge conclude that the possession took place within the context of an ongoing business. The form of the indictment did not preclude that form of reasoning.
It follows that ground 1 must be rejected.

Ground 2

Ground 2 alleges the sentencing judge erred in finding that the applicant
bought methylamphetamine in bulk and then would break it up into smaller amounts, which [he] would sell to [his] regular customers, who [he] presumed would break it up even further and on sell it again.[36]
[36]Reasons, [18].
The applicant refers to the exchange between the applicant and police which was as follows:
Q & A 864: Q And do you just have regular customers you on sell it to? Is that a…? A: Yeah Q 865: ‘Do you know who they sell it to? Are they breaking it up? I’m guessing they break it up even further and then on sell it again. A: Yeah, I’m – I’m not sure on that.
The applicant submits that the mistaken assertion that the applicant did presume that his customers were breaking up and on-selling the drugs (when in fact he had not accepted this suggestion) was material and consequential because it suggested the applicant was positioned higher up in the hierarchy of drug supply and therefore had an impact on the objective assessment of the applicant’s criminality.
The respondent submits this is a ‘narrow and selective’ reading of the sentencing judge’s reasons. The respondent says that
[w]hilst the evidence does not support a finding that the applicant knew his customers would on-sell the drugs, it was open on the evidence that he presumed this was the case, or at the very least, accepted it was a possibility.
The respondent points out that the impugned phrase appears under the heading ‘circumstances of offending’, but not ‘objective gravity of your offending and moral culpability’. The sentencing judge ‘tellingly’ made no finding in the Reasons on the applicant’s level in the drug supply.
Accordingly, the respondent argues there was no error in the factual basis upon which the applicant was sentenced.

Consideration

The sentencing judge’s equivocal finding that the applicant had presumed his customers would further divide and sell the drugs that he had supplied them formed no part in the judge’s assessment of the gravity of the offending. The judge did not use that observation as suggesting that the applicant was involved in some wholesale drug enterprise. The error, if it be one, was not an error in the sentence arrived at and we would refuse leave on this ground.

Ground 3

The applicant seeks leave to appeal on the basis that the individual sentences, orders for cumulation, non-parole period and total effective sentence are manifestly excessive and breach the principle of totality.
The applicant submits that the following constellation of mitigating factors are relevant:
(a)the applicant’s early guilty plea;
(b)the significant delay — 919 days — in determination of the matter;
(c)his solid work history;
(d)his long history of drug addiction;
(e)his poor mental health, supported by two psychological assessment reports of a forensic psychologist;
(f)his family support, including accommodation and employment upon his release;
(g)the harsher conditions in custody because of COVID-19 restrictions and intermittent lockdowns; and
(h)the applicant’s model behaviour while in custody.
The ‘cardinal matters’ which the applicant contends should have been taken into consideration were:[37]
(a)the early offers to plead guilty; and
(b)the ‘inordinate delay, with all the attendant anxiety and stress that such a delay produces, because of the late acceptance of that offer by the prosecution’. [38]
[37]Reasons, [24].
[38]Citing DPP v Merryfull; DPP v Bloomfield [2023] VSCA 244, [44]–[46] (Emerton P, Macaulay and Taylor JJA) as the most recent statement of this principle.
The applicant contends that both of those matters were not given the proper weight they deserved in the instinctive synthesis, and resulted in individual sentences that were disproportionate and excessive.
The applicant also contends that he suffered ‘double punishment’ between charges 6 and 7 given the factual overlap between those charges and the sentences imposed.[39]
[39]Citing Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.
In respect of the early offer to plead guilty and inordinate delay, the respondent submits that it is plain that the sentencing judge took into account the applicant’s offer to plead guilty to the most serious of the charges at a very early stage, declaring that he was entitled to a ‘significant discount’.[40] The respondent contests that the delay was attributable in its entirety to the prosecution, and notes that delay is only one factor that will bear on the overall sentence identified as the result of the sentencing judge’s instinctive synthesis of all relevant factors.[41]
[40]Reasons, [44].
[41]DPP v Harvey [2023] VSCA 234, [55] (McLeish, Kennedy and Taylor JJA).
In respect of the question of double punishment as between charges 6 and 7, the respondent argues that this was clearly considered in the sentencing judge’s discussion at the plea hearing and in her Honour’s reasons. The purpose of the rifle identified by the sentencing judge was the protection of the applicant’s criminal activities, placing it into the more serious category of offending.[42] The respondent submitted that it was not to the point that the gun was an air rifle, it was a weapon which, if discharged, would cause significant injury if pointed at someone.
[42]Reasons, [38].
The respondent also addressed the question of overlap in respect of the severity of the individual sentences on charges 6, 7 and 10 in light of the possession of the firearm and the cash informing conclusions as to the continuing nature of the applicant’s business on charge 1. In oral submissions, the respondent argued that the sentencing judge could not ignore the large possession of cash in considering the context and the circumstances of the trafficking, or in considering the overall totality of the sentence. The result was modest cumulation on charges 6 and 7, which ‘effectively balances the requisite differences in the conduct of each charge with the factual overlap’.
As such, on the question of whether the orders for cumulation were excessive and breached the principle of totality, the respondent repeats that the cumulation ordered in this case is modest. They say the specific orders for cumulation in respect of charges 6 and 7, total concurrency for the related summary offences, and order for an aggregate fine for charges 3, 4 and 5 ‘reveal careful analysis of the gravity of the offending and the existence of some overlap in conduct across the charges’.

Consideration

At the heart of this ground is an assessment of the gravity of the trafficking charge and its relationship to the cash and firearm found at the applicant’s house.
As explained in relation to ground 1, in assessing the objective gravity of the trafficking charge the sentencing judge relied on the cash and the firearm found at the premises in support of her finding that the applicant was engaged in a continuing business as a drug dealer. We note that the sentencing judge said expressly that
I do not treat your possession of the rifle as an aggravating circumstance of your drug trafficking and further, I do not treat the fact you possessed it in furtherance of your drug trafficking business as an aggravating circumstance of the handling stolen goods charge…[43]
[43]Reasons, [38].
For the ‘sake of completeness’ the same principle was noted in respect of the possession of the cash.[44] That may be accepted, although at the least the presence of the cash showed the absence of a mitigating factor in that it precluded a finding that the drug possession for sale was an isolated or naïve incident that was out of character for the applicant. At all events, the finding of a continuing business was an important aspect of the reasons for sentence and depended in part on the cash and firearm.
[44]Ibid.
Because of the potential overlap between the factors that were relevant to the trafficking and those relevant to the individual charges it is important to acknowledge the risk of double punishment.[45] The sentencing judge adverted to the point when she observed that she had not treated the possession of the cash as aggravating the trafficking charges. For present purposes, the issue is not whether the judge approached her task correctly but whether the outcome arrived at was manifestly excessive. In order to succeed the applicant has to show that either the individual sentences or the total effective sentence were wholly outside the permissible range available in the sound exercise of discretion.
[45]In accordance with the principles set out in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.
In our opinion, on the approach taken by the sentencing judge the sentence on charge 1 was open to her Honour, and on our own assessment was correct. However, the orders for cumulation have resulted in a total effective sentence that is manifestly too long. The total cumulation ordered did not reflect the degree of overlap between the factors that were relevant both to the trafficking and the individual charges. It must be accepted that the applicant has a relevant criminal record, was engaged in a continuing business and was motivated by profit. Despite his very early plea of guilty, which had a substantial utilitarian value, any assessment of his prospects of rehabilitation must be circumspect. Balancing all these things, and having regard to the applicant’s overall criminality, the total effective sentence of 5 years’ imprisonment was manifestly excessive and the appeal should be allowed on this ground.
We would resentence the applicant as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking a drug of dependence (methylamphetamine)	15 years	3 years	Base
2	Trafficking a drug of dependence (cocaine)	15 years	6 months	1 month
3	Possession of a drug of dependence (ketamine)	1 year and/or 30 penalty units	$2000 aggregate fine
4	Possession of a drug of dependence (tryptamine)	1 year and/or 30 penalty units
5	Possession of a drug of dependence (oxycodone)	1 year and/or 30 penalty units
6	Handling stolen goods (Stoeger air rifle)	15 years	6 months	1 month
7	Possession of a firearm (Stoeger air rifle)	10 years or 1200 penalty units	3 years	3 months
8	Handling stolen goods (gold necklace and pendant)	15 years	6 months	1 month
9	Possess explosive substance without excuse (nine ‘Bog Roll Battles’ fireworks and ‘255 cake’ fireworks) – rolled-up charge	5 years	$600 fine
10	Knowingly dealing with proceeds of crime $178,255.00)	15 years	3 years	6 months
Related summary offences
Summary charge 9	Possess prohibited weapon (capsicum spray)	2 years or 240 penalty units	2 months
Summary charge 13	Possess prohibited weapon (taser)	2 years or 240 penalty units	2 months
Total effective sentence:		4 years’
Non-parole period:		2 years and 6 months
S 6AAA Statement:		6 years’ imprisonment with a non-parole period of 4 years and 6 months

Orders will be made accordingly.
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[2025] VSCA 142

26 June 2025