McCabe v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0018

ROWAN MCCABE	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2023
DATE OF JUDGMENT:	19 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 329
JUDGMENT APPEALED FROM:	[2019] VCC 1808 (Judge Dean)

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CRIMINAL LAW – Sentence – Application for extension of time within which to file application for leave to appeal – Applicant guilty of trafficking large commercial quantity of drug of dependence – Total effective sentence of 11 years, non-parole period of 7 years – Whether objective gravity of offending and offender’s culpability incorrectly assessed – No error – Extension of time refused.

Drugs, Poisons and Controlled Substances Act 1981, s 71, sch 11.

Wong v The Queen (2001) 207 CLR 584; R v Pidoto (2006) 14 VR 269; DPP (Cth) v Maxwell (2013) 228 A Crim R 218; Lieu v The Queen (2016) 263 A Crim R 173, considered.

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Counsel
Applicant:		In person
Respondent:		Ms K Hamill
Solicitors
Applicant:	--
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
TAYLOR JA:

Introduction

On 28 October 2019, the applicant was convicted by a jury in the County Court of one charge of trafficking in a large commercial quantity of a drug of dependence (namely, 5.289 kg of MDMA, also known as ‘ecstasy’).[1] The maximum penalty for that offence is a life term of imprisonment. Following a plea on 31 October 2019, on 7 November 2019 the applicant was sentenced to a term of imprisonment of 11 years, of which he was ordered to serve 7 years before being eligible for parole.
[1]Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCS Act’). When mixed with another substance, as it was in this case, a large commercial quantity of MDMA is not less than 1 kg of the mixed MDMA and other substance: DPCS Act, s 70 and sch 11, pt 3.
The applicant sought to apply for leave to appeal against his sentence on the ground that the sentencing judge incorrectly assessed the objective gravity of his offending and level of culpability, resulting in an unduly high sentence.[2]
[2]In oral submissions, the applicant abandoned a second proposed ground of appeal, which was that fresh and compelling evidence in the form of a global pandemic has resulted in acute hardship to the applicant and his family, in light of which the sentence imposed is now excessive.
To seek leave to appeal against his conviction or sentence the applicant was required to file an application for leave to appeal within 28 days of being sentenced.[3] As the applicant was sentenced on 7 November 2019, this period expired on 6 December 2019. More than 18 months out of time, the applicant filed an application for leave to appeal his conviction only. This Court refused an extension of time to apply for leave to appeal against conviction on 15 July 2022, and on 15 December 2022 the High Court dismissed an application for special leave to appeal from that refusal. On 1 February 2023 — more than three years after he was sentenced — the applicant filed an application for an extension of time within which to file this application for leave to appeal against his sentence.
[3]Criminal Procedure Act 2009, ss 275(1), 279(1).
The discretion to grant or refuse an extension of time is broad. The exercise of that discretion is informed by what the interests of justice require in the particular circumstances of a case. Relevant to the exercise of that discretion are the length of the delay, the reasons for it and the prospects of success, should the extension be granted.[4]
[4]Madafferi v The Queen [2017] VSCA 302, [11].
For the reasons that follow, we would not grant the applicant leave to appeal. Because it would be futile to do so, we would therefore refuse to grant the applicant an extension of time within which to file his application for leave to appeal against sentence.

Circumstances of offending

In the course of giving reasons for refusing to grant the applicant an extension of time within which to apply for leave to appeal his conviction, this Court summarised the essential circumstances of the applicant’s offending as follows:[5]
[5]McCabe v The Queen [2022] VSCA 139, [10]–[14].
On 29 May 2017, a search warrant was executed at Unit 203 of Fry’s Self Storage Facility in Fitzroy. The unit was secured by a padlock. A quantity of MDMA, 5.3 kilograms, was seized from a Fox Racing backpack located to the right of the storage unit, under a desk, and 37 grams of methylamphetamine was seized from a Bells Beach sports bag under the same desk. The applicant was arrested on 2 June 2017 and charged with the trafficking offence.
The applicant was in possession of a key to the unit padlock, found on his bedside table on 2 June 2017. He admitted to filling out the forms for the storage unit agreement. He had completed the lease agreement on 11 December 2015, in the name of Jordan Mehfeld, a convicted drug trafficker. He signed the agreement using Mehfeld’s name and using Mehfeld’s genuine driver’s licence as identification.
The applicant resembled the person in the photo on the driver’s licence used to rent the unit. That licence was found in the Bells Beach bag in the unit. The storage unit was under surveillance by police between 12 February and 25 April 2017. The applicant was observed to enter the unit on a number of occasions, and was the only person observed entering in that period.
On 12 April 2017, the investigators gained covert access to the unit and observed the following in it:
•a Bells Beach bag containing drug preparation material;
•a Faraday bag containing hundreds of thousands of dollars in cash; and
•a Fox Racing bag containing a large quantity of drugs made up of pills, powder, digital scales and so on.
At the time of gaining access, investigators installed an optical surveillance device in the unit. On 25 April 2017, the device captured the applicant using the key to unlock and enter the unit. Once inside, he handled the Faraday bag, and he took a substance from somewhere underneath the desk and weighed it on digital scales. He then left the storage unit with the Faraday bag (the cash bag) and the weighed substances. When the applicant was arrested on 29 May, the Faraday bag and a set of keys including the key to the padlock to the storage unit were found at his house, but no cash was found.
The case advanced against the applicant was of a circumstantial nature. The applicant gave evidence at the trial. He said that he had entered the unit solely to obtain methylamphetamine for his personal use. He said he had nothing to do with — and had no knowledge of — the large quantity of MDMA found in the Fox Racing bag. He said he was not the only person with access to the unit. As stated, the jury convicted the applicant — and thus rejected his account of events — and he failed in his endeavour to appeal against that conviction.

Reasons for sentence

The sentencing judge briefly described the circumstances of the applicant’s offending.[6] Further to the details set out above, the judge recorded that the 5.289 kg of drug of dependence found to be in the applicant’s possession was in the form of ‘14,069 tablets containing a mixture of MDMA … and another illegal drug of dependence, ethylone’.[7] Additionally, the judge stated:
The charge you were convicted of concerned the MDMA. The evidence of the drug analyst, Jodie Burke, revealed that the pills contained very low percentages of MDMA. A large commercial quantity of that drug of dependence in a mixture with another substance is 1 kilogram, and so your offending concerns in excess of five times the large commercial quantity.[8]
[6]DPP v McCabe [2019] VCC 1808, [3]–[8] (‘Reasons’).
[7]Ibid [3].
[8]Ibid [4].
At the trial, Ms Burke, a scientist at the Victoria Police Forensic Services Department, gave oral evidence of the results of her analysis of the drugs. In substance, she agreed that many of the items that were analysed contained MDMA measured at ‘around the one per cent mark’. Neither at the trial nor at the plea hearing did the prosecution or the applicant tender in evidence the certificate which Ms Burke prepared setting out the detail of her analysis. On the application for leave to appeal against his sentence, the applicant sought to rely upon the contents of that certificate.
The certificate prepared by Ms Burke contained the results of her analysis of numerous items seized from the applicant. Among those items were 21 lots of tablets, fragments of tablets or powder which contained some quantity of MDMA. Together, those 21 lots included the 14,069 tablets, which together with the fragments and powder weighed 5289.1 grams. The approximate purity of MDMA measured in 17 of the 21 lots ranged between 84 per cent and less than 0.6 per cent, with only six lots measuring 15 per cent or more. Purity was not determined at all in 4 of the lots. In the 16 of those 21 lots that also contained some quantity of ethylone — also a drug of dependence — the approximate proportion of that substance ranged between 33 per cent and 2.1 per cent.
In circumstances where the certificate prepared by Ms Burke did not form any part of the evidence at trial or on the plea, it ought not be relied upon in this application. In any event, as explained below, its contents do not assist the applicant.

Objective seriousness of the offending

In considering the seriousness of the offending and the applicant’s degree of culpability, the judge considered it ‘plain that [the applicant’s] is a crime of the utmost seriousness’, and set out the following passage from the reasons of this Court in Kim v The Queen:
We wish to make it clear once more that long prison sentences await those who participate in this pernicious trade. Those lengthy sentences are the occupational risk of the drug dealer and with modern policing techniques, that risk becomes greater by the day. Should that risk become reality, the principles of general deterrence and denunciation will normally be accorded particular prominence in the sentencing mix. Those who choose to embark on the business of drug trafficking must understand that they will lose their liberty for an extended period. It is only in this way that the courts can discourage those lured by greed into an enterprise that is so harmful to our community.[9]
[9]Ibid [9], quoting Kim v The Queen [2019] VSCA 149, [31].
The judge regarded the principles set out in this passage as ‘clearly engaged in [the applicant’s] case’.[10] He found that the applicant was engaged in the business of drug trafficking for profit — demonstrated by his possession of over 14,000 ecstasy tablets and the large amount of cash located in the Faraday bag in the storage unit — and accepted the prosecution’s submission that the applicant could be described as a ‘wholesaler’.[11] The judge continued:
[W]hilst you may have been a recreational drug user, your background is one of stability and privilege and the only plausible explanation for your crime is that you decided to offend to earn the large profits available from it. In my opinion, in such circumstances your moral culpability for your offending may properly be described as high.[12]

The applicant’s personal circumstances

[10]Ibid [10].

[11]Ibid [8].

[12]Ibid [11] (emphasis added).

The judge considered the applicant’s personal circumstances. The judge noted the applicant’s privileged background, and found that the applicant came from a ‘stable, loving and supportive family’, was university educated, and was a ‘highly skilled’ chartered accountant who had held positions of responsibility in large commercial organisations.[13]
[13]Ibid [11]–[12].
Having regard to several positive character references, the judge accepted that the applicant was highly regarded by his peers and family. The judge also took note of a psychological report disclosing that in 2017–18 the applicant suffered from an adjustment disorder and depression. The judge accepted that these conditions may re‑emerge as a result of incarceration, in which case the applicant would require ongoing treatment and support. The judge also noted that the applicant has a young child, and that separation from his child would add to the burden of imprisonment.[14]
[14]Ibid [13].
The judge took into account that the applicant had no prior convictions, subsequent convictions or outstanding charges. The applicant had also complied with strict bail conditions and remained drug-free from the time of his arrest until his sentencing, a period of more than two years.[15]
[15]Ibid [2], [14].
The judge considered that the applicant had a capacity to adapt to prison life and had good prospects of rehabilitation, as a result of which specific deterrence was not a prominent sentencing factor.[16] However, it was noted that the applicant had not shown remorse for his offending, and that ‘the mitigatory effect of a plea of guilty is absent’ in his case.[17]
[16]Ibid [14].
[17]Ibid [7].

Proposed ground 1: Objective gravity of the offending and applicant’s level of culpability

Having abandoned a second proposed ground of appeal in oral argument, the remaining proposed ground on which the applicant seeks leave to appeal his sentence is that the judge incorrectly assessed the objective gravity of his offending and level of culpability, resulting in an unduly high sentence.
In his written case, the applicant made two submissions in support of this ground: first, that the trial judge determined (or relied upon) an expectation of large profits which was not factually supported, resulting in error; and secondly, that the trial judge determined (or relied upon) an aggravating factor (that is, the presence of the large amount of cash) which could not be linked to the trafficking charge, resulting in error. In oral submissions, the applicant abandoned the second of those two submissions.
In the result, the applicant’s sole proposed ground of appeal was that, by making an alleged factual error concerning the expected profitability of the applicant’s drug trafficking, the judge had wrongly assessed the gravity of the offending and the applicant’s culpability.

Relevant legal principles

The determination of the seriousness of an instance of the offence of trafficking a commercial (or large commercial) quantity of drugs is informed by a range of factors, including: the role of the offender, the position of the offender in the drug trafficking (or importing) hierarchy, the nature and extent of the offender’s involvement in the enterprise, the sophistication of the enterprise, and the amount of drugs involved, or intended to be involved, in the enterprise.[18]
[18]Lieu v The Queen (2016) 263 A Crim R 173, [41] (Beach and Kaye JJA); [2016] VSCA 277 (‘Lieu’).
In Lieu, Beach and Kaye JJA said that the weight or amount of the drugs involved is a factor of some importance, explaining:
That circumstance is relevant to determining the dimension of the enterprise in which the offender is involved, and the amount of profit that was expected from the enterprise, which generally constitutes the primary if not sole motive for the offending. The weight or amount of the drugs involved might also indicate that the enterprise, in which the offender has been involved, was far reaching, and sophisticated. On the other hand, that factor, per se, is not necessarily the primary or overriding factor in determining the gravity of the offending under consideration.[19]
[19]Ibid [42].
The sentencing regime for drug trafficking is quantity-based. Although the quantity of drug trafficked is not the only relevant consideration to an assessment of gravity, and nor is it determinative, it is a highly relevant one. Other things being equal, the greater the quantity trafficked, the more serious the offence.[20] In introducing the offence of trafficking in a large commercial quantity of a drug of dependence, with a maximum sentence of life imprisonment, Parliament’s intention was to send a clear message about how sternly large-scale drug trafficking was to be punished.[21]
[20]Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, [23]–[24]; [2017] VSCA 151; Sharbell v The Queen [2018] VSCA 324, [63]; Djordjic v The Queen [2018] VSCA 227, [69]; DPP v Fatho & Ors [2019] VSCA 311, [70]; DPP v Goldsmid [2023] VSCA 124, [67] (‘Goldsmid’).
[21]Quah v The Queen (2021) 290 A Crim R 136, [54]–[57]; Goldsmid [2023] VSCA 124, [68].
Schedule 11, pt 3 of the Drugs, Poisons and Controlled Substances Act 1981 (the ‘DPCS Act’) lists the threshold weights of drugs of dependence — both in pure form (column 1A) and in mixed form (column 1B) — which constitute a ‘large commercial quantity’ of each drug as defined in s 70 of the DPCS Act. In the case of MDMA, 750 g of pure MDMA and 1 kg of a mixture of MDMA and another substance meet that threshold.[22]
[22]DPCS Act, sch 11, pt 3.
In R vPidoto (‘Pidoto’), this Court explained that the amount of a drug of dependence which will constitute a commercial quantity under the DPCS Act varies significantly from one drug to the next.[23] The purpose of the quantification in sch 11 was to establish, in relation to each nominated drug of dependence, the quantity of that drug which would justify characterising the trafficking as ‘truly commercial in nature’. The Court quoted the Attorney-General’s second reading speech when introducing amendments to the DPCSAct in 1997, which set new thresholds for what constituted commercial quantities of drugs of dependence. The Attorney-General said:
Because the motivation for trafficking drugs of dependence is primarily economic profit, the levels set for the different drugs in schedule 11 will reflect a consistent monetary value or number of doses of a drug.[24]
[23]R vPidoto (2006) 14 VR 269 [12]–[15] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185 (‘Pidoto’).
[24]Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873, 876 (Jan Wade, Attorney-General), quoted in Pidoto (2006) 14 VR 269, [14] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185.
As a general proposition, trafficking in a commercial quantity of one drug of dependence is no more or less serious than trafficking in a commercial quantity of another drug of dependence listed in sch 11 of the DPCS Act.[25] The same logic applies in respect of the large commercial quantity thresholds.
[25]Pidoto (2006) 14 VR 269, [38] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185.
As stated in DPP vMaxwell (‘Maxwell’),[26] none of this denies that the financial reward anticipated by the offender is irrelevant to sentencing — particularly since, as acknowledged in Pidoto, the specification of the threshold weights was based upon the anticipated profits to be made from trafficking each different drug. Ordinarily, however, it is unnecessary for the prosecution to prove an anticipated return for the offender. Nevertheless, in Maxwell, it was suggested that it would remain open to an offender to mitigate their culpability by proving that the commercial quantity of the drug trafficked had a fraction of the wholesale or retail value of another drug, and could only ever have produced a relatively small return.[27]

Applicant’s submissions

[26]DPP (Cth) v Maxwell (2013) 228 A Crim R 218, [28]; [2013] VSCA 50 (‘Maxwell’).

[27]Ibid [29]–[30].

The applicant’s argument begins with the proposition that the large commercial quantity thresholds in sch 11 of the DPCS Act were set so as to establish the quantities of each nominated drug of dependence which, if trafficked, would justify the trafficking being characterised as ‘truly commercial in nature’. He emphasised a part of the Attorney‑General’s speech to Parliament in 1997, in which she said that the new thresholds of commercial quantities were set to ensure that trafficking ventures which were ‘truly commercial in nature’ attracted the higher maximum penalty.[28]
[28]Pidoto (2006) 14 VR 269, [14] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185.

Next, the applicant submitted that the kind and size of financial rewards promised to an offender were important when fixing sentences, so that, ordinarily, the greater the expected reward, the heavier the punishment should be. Relying upon Wong v The Queen (‘Wong’)[29] and this Court’s decision in Maxwell, he submitted that selecting the weight of a narcotic as the ‘chief factor’ to be taken into account when sentencing was a departure from fundamental principle.
[29](2001) 207 CLR 584, see especially [70] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64 (‘Wong’).
The applicant submitted that there is a trend of relatively lesser sentences being imposed for trafficking certain types of drugs, such as GHB/GBL. This was said to reflect the enormous reward differential between such drugs and other drugs of a higher value. He then contended that low valuations of MDMA in recent times support similarly more lenient sentencing. In support of that statement he cited several decisions in the County Court, one of which referred to the Australian Criminal Intelligence Commission Illicit Drug Data Reports 2016-17, 2017-18 and 2018-19, in which the values of a kilogram of MDMA, an ounce of heroin, an ounce of cocaine and a kilogram of methylamphetamine were compared.
According to the applicant, the lower financial rewards available for trafficking a drug such as MDMA — compared with other drugs such as heroin, cocaine and methylamphetamine — should be reflected in a reduction in the prominence given to general deterrence and denunciation in the sentencing exercise.
Additionally, the applicant drew upon the principle that it is open to an offender, in the particular circumstances of a case, to displace the statutory presumption that trafficking a quantity of a drug which met the statutory threshold for a large commercial quantity was truly commercial in nature. The applicant argued that a number of factors should have led the judge to conclude that trafficking the MDMA found in his possession was not truly commercial in nature, and was not capable of providing high financial returns. Those factors were:
(a)the acknowledged low purity of the MDMA;
(b)his counsel’s characterisation of the tablets as ‘rubbish’, and the judge’s reference to that submission on the plea;
(c)the form in which the MDMA was found, being a combination of pills, broken pills and powder;
(d)the drugs were a mixed substance containing MDMA and ethylone, within which the respective quantities of MDMA and ethylone were both very low;
(e)the drugs were left untouched in the storage unit for a period of 54 days;
(f)the drugs were to be sold wholesale rather than retail; and
(g)no-one undertook any valuation of the drugs.
Against that background of fact and principle, the applicant submitted that the judge erred in concluding that the objective gravity of the applicant’s offending was serious and his moral culpability high. The error, the applicant argued, stemmed from the judge’s erroneous assumption that the applicant was motivated to offend in order ‘to earn the large profits available from it’. Such error, he submitted, led the judge to attribute too much significance in the sentencing exercise to the considerations of general deterrence and denunciation, so that the sentencing discretion miscarried.

Respondent’s submissions

The respondent submitted that the sentencing judge did no more than address those matters relevant to sentencing for trafficking offences in an orthodox fashion. Concerning the judge’s comments regarding the seriousness of the applicant’s offending,[30] the respondent submitted that — understood in proper context — these comments clearly refer to the offence of trafficking in a large commercial quantity of a drug of dependence itself, rather than to the particular circumstances of the applicant’s offending.
[30]Reasons, [9].
The respondent accepted that a person convicted of drug trafficking may seek to mitigate their culpability by establishing that they stood to derive little or no benefit personally. However, the respondent emphasised that the applicant — consistent with his position at trial that the drugs were not his — did not lead evidence as to the amount he stood to benefit from his offending. The respondent submitted that the sentencing judge’s reference to the ‘large profits’ available from the applicant’s offending merely reflects the judge’s finding that it was motivated by greed. The respondent submitted that the description of anticipated profits as ‘large’ is a relative and subjective term, and one which reflects consistent judicial comment that general deterrence is given particular emphasis in relation to those convicted of trafficking in large commercial quantities of drugs in expectation of the large profits that may be derived therefrom.
Regarding matters raised by the applicant relating to the commerciality of his offending, the respondent submitted that:
(a)The authorities relied upon by the applicant to assert the relevance of low drug purity relate to instances of de minimis purity, as opposed to something more than de minimis purity as was the case presently. In any case, the sentencing regime for drug trafficking is quantity-based and, other things being equal, the greater the quantity trafficked, the more serious the offence. To the extent the applicant submitted that the judge ought to have made a finding as to the relative efficacy of the drugs — whether by virtue of their low purity, or in comparison to other drugs of dependence — such a finding would have been speculative and improper.
(b)Generally, trafficking in a large commercial quantity of one drug of dependence is no more or less serious than trafficking in a large commercial quantity of a different drug of dependence. While it is open to an offender to prove that the commercial quantity of the drug trafficked had a fraction of the wholesale or retail value of another drug, the applicant did not seek to do so.
(c)The applicant’s emphasis on the distinction between wholesale and retail sale of drugs misunderstands the nature of trafficking, and the differing roles of different individuals within the trafficking hierarchy.
(d)It does not follow from the fact that the drugs were left unattended for some time that they were of low quality, or that the applicant’s trafficking was not truly commercial in nature.

Analysis

At trial and on the hearing of the plea, the applicant was represented by experienced senior counsel.[31] On the plea, senior counsel submitted that the approximately $250,000 in cash seen by investigators in the Faraday bag should not be taken into account as informing the business nature of the drug trafficking of which the applicant had been convicted. That submission was rejected by the judge. It originally formed part of the applicant’s argument on this application for leave to appeal but was abandoned in oral submissions, correctly in our view.
[31]The applicant represented himself in this Court.
A further submission — relevant to the argument now advanced — related to the purity of the MDMA. The applicant’s counsel submitted to the judge that ‘purity matters’, and that in this case the purity of the MDMA was so low that the MDMA could be described as ‘rubbish’.
In the exchange that followed, the judge asked how he could conclude, without evidence, that the MDMA was ‘rubbish’. More particularly, he questioned how he could conclude whether the tablets in question would provide the ‘normal dose of MDMA’ that a person would take to enjoy, for example, a music festival or some such other event. There was no answer to this question. No evidence was offered about the efficacy of the MDMA in question at the levels of purity measured by Ms Burke, or about its commercial value.
The judge had no evidentiary basis upon which to conclude that the 5.3 kg of MDMA in this case was worth some lesser fraction of the wholesale or retail value of five times a large commercial quantity of some other drug of dependence listed in sch 11, or that the MDMA tablets could only ever have produced a relatively small return. What the judge knew from the evidence was that the applicant possessed a substance containing two drugs of dependence each listed in sch 11, one of which was MDMA, and that the weight of that mixture was over five times the statutory threshold for a large commercial quantity of MDMA in a mixed substance.
A further matter raised in submissions before the judge was the question of the applicant’s motive. The judge put it to senior counsel for the applicant that the applicant was 35 years of age, came from a ‘good family background’, was ‘highly educated’ and it could not be said that his drug trafficking was conducted in order to finance his own drug habit. Those circumstances, the judge suggested, could only lead to one conclusion — namely that the applicant trafficked drugs for the money. Senior counsel agreed that the applicant’s conduct defied belief.
Against that background, the judge said in his reasons that:
•the applicant’s crime was one of the ‘utmost seriousness’;[32]
•since he used drugs only recreationally and came from a background of stability and privilege, he could only have been trafficking the MDMA for profit;[33] and
•he was engaged in trafficking at the wholesale level (as distinct from being a trafficker on a low rung within the drug trafficking hierarchy),[34]
all of which led the judge to conclude that the applicant’s moral culpability was high.
[32]Reasons, [9].
[33]Ibid [11].
[34]Ibid [8].
There is no error in this reasoning. The offence of trafficking a large commercial quantity of a drug of dependence is, by its very nature, an offence which is objectively very grave. The applicant’s role in the trafficking hierarchy, and the fact that profit was his sole motivation, were significant sentencing facts which impacted his moral culpability. The prosecution did not have to prove the anticipated return from trafficking this MDMA in order to establish that the applicant’s offence was objectively serious. The applicant offered no evidence to displace the legislative presumption that trafficking 5.3 kg of mixed MDMA was truly commercial in nature. The judge would only have been speculating, impermissibly, to accept a submission that trafficking these particular pills could only have produced small returns far below those to be expected from trafficking a large commercial quantity of MDMA as defined in the DPCS Act.
We will briefly address some of the applicant’s specific arguments.
First, the applicant’s reliance on comments made in Wong — to the effect that selecting weight as a ‘chief factor’ to be taken into account when sentencing was a departure from fundamental principle — is misconceived.[35] The issue in Wong was whether sentences for importing narcotic drugs into Australia might be set by reference to a ‘guideline’ suggested by the Court of Criminal Appeal in NSW. That guideline created several bands of weights within the statutory categories of ‘traffickable quantity’ and ‘commercial quantity’ of narcotic drugs and suggested sentencing ranges applicable to each band.[36] By majority, the High Court found that the use of that guideline led to error. In that context, the court’s remarks about the use of weight as the ‘chief factor’ do not undermine the quantity-based system of sentencing set out under the statutory regime in Victoria, which defines offences by reference to traffickable quantity, commercial quantity and large commercial quantity of a drug of dependence.
[35]Wong (2001) 207 CLR 584, [70] (Gaudron, Gummow and Hayne JJ).
[36]Wong (2001) 207 CLR 584, [35], [67], [70] (Gaudron, Gummow and Hayne JJ).
Secondly, the fact that the drugs were left untouched for a period of 54 days was, as was remarked on the plea, consistent with the 14,069 pills being wholesale stock rather than stock that was available for sale on the quicker-turnover retail market. Further, the conclusion that the applicant was operating at the wholesale level was relevant to the accepted sentencing consideration of the offender’s role within the trafficking hierarchy.
Thirdly, the absence of any valuation of the MDMA is a problem for the applicant, rather than the respondent. As stated, ordinarily the prosecution does not have to prove any anticipated financial reward to the offender. The prosecution is entitled to rely upon the statutory presumption of value inherent in the quantities prescribed in sch 11 of the DPCS Act. While it may remain open to an offender to seek to prove otherwise, the applicant did not seek to do so in this case. His attempts on his application for leave to appeal against sentence to rely on his own analysis of Ms Burke’s certificate, and his reference to other materials that were not presented as evidence before the sentencing judge, could not assist him in establishing a factual error on the part of the judge.
Finally, we come to the judge’s remarks about the applicant having decided to offend ‘to earn the large profits available from it’. The fact that the applicant was trafficking drugs for profit can hardly be doubted. To infer that such profits would be large involves no error when the very designation of large commercial quantity is based upon the capacity of such a quantity to yield high commercial returns, and there was no evidence before the judge to contradict that proposition. In any event, we agree with the respondent’s submission that the description ‘large’ is a relative and subjective term. In context, it was used to engage the legislative intent that those who traffick in large commercial quantities of drugs, lured by greed in the expectation of the large profits that may be derived therefrom, should, by the application of the sentencing principles of deterrence and denunciation, lose their liberty for extended periods of time.
In our view, none of the applicant’s arguments are capable of establishing that the judge made any error of fact or principle in finding that the offence of which the applicant was convicted was objectively grave, and that the applicant’s moral culpability was high. The arguments lack merit, such that an extension of time within which to file an application for leave to appeal against sentence must be refused. The very long delay between sentence and the filing of this application, without adequate explanation,[37] is a further reason for refusing it.
[37]The applicant filed two affidavits in support of his application for an extension of time within which to file an application for leave to appeal. One was his affidavit sworn 13 May 2021, in which he attempted to explain his delay in filing an application for leave to appeal his conviction. The other, sworn 17 January 2023, was a short affidavit explaining that he was refused an extension of time in which to apply for leave to appeal his conviction, failed in his application for special leave, and had experienced other delays caused by lack of access to legal materials and a computer.
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[2023] VSCA 329

19 December 2023