Needham v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0115

ADAM NEEDHAM	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2024
DATE OF JUDGMENT:	15 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 270
JUDGMENT APPEALED FROM:	DPP v Needham (Unreported, County Court of Victoria, 15 April 2024, Judge Quin)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Home invasion, causing injury intentionally, kidnapping and trafficking in a commercial quantity of a drug of dependence (1,4-Butanediol) – TES of 7 seven years, with NPP of 5 years and 6 months – Whether sentence manifestly excessive – Whether sentence infringed totality principle – Whether sentence infringed parity principles – Whether sentence failed to achieve appropriate relativity with sentence imposed on co-offender – Proposed grounds of appeal not reasonably arguable – Application for leave to appeal refused.

Farrugia v The Queen (2011) 32 VR 140; DPP (Cth) v Maxwell (2013) 228 A Crim R 218; Ellis v The Queen [2018] VSCA 221, referred to.

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Counsel
Applicant:		Mr DA Dann KC
Respondent:		Ms S Clancy with Ms E Allan
Solicitors
Applicant:	Fayman Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 21 March 2024, the applicant pleaded guilty in the County Court to one charge of home invasion[1] (charge 1); one charge of intentionally causing injury[2] (charge 2); one charge of kidnapping[3] (charge 3); and one charge of trafficking in a commercial quantity of a drug of dependence[4] (charge 4). On 15 April, 2024 the applicant was sentenced by her Honour Judge Quin as follows:[5]
[1]Contrary to s 77A of the Crimes Act 1958.
[2]Contrary to s 18 of the Crimes Act 1958.
[3]Contrary to common law.
[4]Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981.
[5]DPP v Needham (Unreported, County Court of Victoria, 15 April 2024, Judge Quin) (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Home invasion	25 years	3 years, 6 months	Base
2	Causing injury intentionally	10 years	2 years	1 year
3	Kidnapping	25 years	2 years, 6 months	6 months
4	Trafficking in a commercial quantity of a drug of dependence	25 years	3 years	2 years
Total Effective Sentence:		7 years
Non-Parole Period:		5 years and 6 months
Pre-sentence Detention Declared:		486 days
Section 6AAA Statement:		TES: 9 years and 6 months NPP: 7 years

Six months earlier, on 2 October 2023, also following a plea of guilty, Emma Ezergailis, one of the applicant’s co-offenders in relation to charges 1, 2 and 3, was sentenced, by another judge in the County Court, for her role in that offending, as follows:[6]
[6]DPP v Ezergailis [2023] VCC 1769 (Judge Syme) (‘Ezergailis Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Home invasion	25 years	3 years, 6 months	Base
2	Causing injury intentionally	10 years	2 months	Nil
3	Kidnapping	25 years	2 years, 6 months	6 months
Total Effective Sentence:		4 years
Non-Parole Period:		2 years and 1 month
Pre-sentence Detention Declared:		424 days
Section 6AAA Statement:		TES: 6 years and 6 months NPP: 3 years and 6 months

The applicant now seeks leave to appeal against his sentence, on the following proposed grounds:
1.The sentencing judge failed to have sufficient regard to the totality principle.
2.The sentencing judge failed to have regard to the need to achieve appropriate relatively between the sentence imposed on the applicant and the sentence imposed on the co-offender, Emma Ezergailis.
3.The total effective sentence and non-parole period are manifestly excessive.

Circumstances of the offending

On 28 July 2022 at approximately 4.45 am, the complainant was asleep at his house in Reservoir, as were the other occupants of the house. They were woken by a knock at the door and voice saying ‘Where’s Phil’ (the complainant’s first name). The complainant recognised the applicant’s voice, and another occupant answered the door. As the other occupant unlocked the door, the applicant and his co-offenders, Ezergailis, DD and two unidentified males, entered the house. One of the applicant’s co-offenders was holding a shovel taken from the backyard of the house.
The complainant ran into the bathroom at the back of the house, closed the door and attempted to start a chainsaw to protect himself. The applicant, however, forced his way into the bathroom. A scuffle occurred and the complainant fell on the applicant. Ultimately, the complainant was pulled off the applicant by DD, who then pointed a handgun at the complainant’s head and said: ‘Get into the car, if you run, I’ll kill you and your family’.
At some point, the complainant was struck with the shovel by an unidentified offender. Ezergailis also entered the bathroom and punched the complainant to the face. When this occurred, DD warned the complainant not to retaliate. The complainant was assaulted in the bathroom for approximately five minutes. While this was taking place, the other residents remained in the living room, being watched by the two unidentified co-offenders.
After the assault ended, the applicant, DD and Ezergailis walked out of the house with the complainant. The complainant had no choice but to go with them. The group walked towards a car parked in the street. The complainant got in the front passenger seat, while the applicant got into the seat behind him. As the car moved off, one of the seat belt alarms activated and the complainant took the opportunity to jump out of the car. The applicant and Ezergailis gave chase in the car while the complainant ran towards a railway reserve bike path and attempted to call 000 on his mobile phone.
The applicant and Ezergailis caught up to the complainant, and the applicant produced a box cutting knife. He then slashed at the complainant, causing a deep cut to the back of his head. The applicant continued to slash at the complainant approximately 12 times, during which time the complainant begged him to stop. Ezergailis took the complainant’s mobile phone and disconnected the 000 call.
Eventually, the applicant dropped the knife and the complainant tried to escape again. Ezergailis told the applicant not to let him get away, before they both then drove away from the scene. The complainant staggered along the road and collapsed at a Woolworths store where a staff member called 000.
Police arrived a short time later and found the complainant on the ground bleeding from the wound to the head. He was then taken by ambulance to Royal Melbourne Hospital. Medical assessments showed he had suffered a 10 centimetre long laceration to the left temporal region with superficial lacerations to the anterior neck.
DD and Ezergailis were arrested on 4 August 2022. Ezergailis made a number of admissions when interviewed by police, saying that the complainant had stolen from her a number of years ago and she wanted revenge. She said she had left it up to the others who were with her as to what was done to him. She admitted participating in the assault of the complainant, and she said that she knew that he was frightened.
On 29 August 2022, the applicant was found at a short stay apartment in Kew. He immediately fled the scene. On 16 December 2022, however, he was found in Gerringong, New South Wales. He was arrested and then extradited to Victoria.
On 31 August 2022, police executed a search warrant at a storage unit rented by the applicant in Deer Park. Although the rental agreement for the storage unit was in the applicant’s partner’s name, it recorded the applicant as the alternate contact person. Inside the storage unit, police located a cardboard box with 22 white bottles containing 1,4-Butanediol, a drug of dependence. The bottles were analysed and found to contain a total of 10.9 kgs of that drug. The commercial quantity for that drug is two kgs.
On 16 December 2022, the applicant made a ‘no comment’ record of interview in relation to the home invasion and attack on the complainant. On 18 December 2022, he made a second record of interview in relation to the trafficking of a commercial quantity of a drug of dependence. In that record of interview, he admitted ownership of the substances in the bottles.

Reasons for sentence

The judge commenced her reasons for sentence by noting the maximum penalties for each of the offences to which the applicant had pleaded guilty.[7] Additionally, her Honour noted that the offences of home invasion and kidnapping were both category 2 offences, requiring the imposition of a custodial sentence unless the applicant ‘fell into any of the statutory exceptions’,[8] none of which were submitted to be applicable in the present case.
[7]Reasons, [1].
[8]See s 5(2H) of the Sentencing Act 1991.
After summarising the circumstances of the applicant’s offending,[9] and noting that no victim impact statements had been provided,[10] the judge said that it was, however, clear that the complainant would have been terrified as a result of the arrival of the applicant in the early hours of the morning at his house, in the company of the other offenders; being threatened, and compelled to leave his house; and being ‘attacked or slashed by [the applicant] with the box cutter causing him significant injuries’.[11]
[9]Reasons, [2]–[13].
[10]Ibid [14].
[11]Ibid.
The judge referred to letters tendered in evidence from the applicant, the applicant’s mother, the applicant’s sister, and the mother of the applicant’s child. She also referred to a report prepared by Luke Armstrong, a psychologist, who had examined the applicant in August 2023. The judge said that she had taken ‘all that material into account’.[12]
[12]Ibid [15]–[16].
In summarising the applicant’s personal circumstances, the judge noted the following matters:
(1)At the time of sentencing, the applicant was 28. He had 2 siblings, although he was a estranged from his sister and had no contact with his father. He had 6 half siblings, and he remained in contact with 2 of them. He was estranged from his mother and the remainder of his half siblings.[13]
(2)The report from Mr Armstrong contained a history of the applicant being exposed to a significant amount of domestic violence in his childhood years; with the applicant reporting being overwhelmed at a young age and, at that time, having persistent suicidal ideation. The applicant left both home and school at around the age of 16.[14]
(3)After leaving school, the applicant commenced employment. As he got closer to 18 years of age, however, his alcohol consumption and drug use increased. This made it difficult for him to hold down a job. Moreover, the applicant associated with ‘violent older peers and looked up to this group … [he] having no appropriate male role models’.[15]
(4)The applicant has a child, who was 12 at the time of sentencing. He commenced a relationship with the child’s mother when they were both using drugs. The mother of the applicant’s child described the applicant ‘as a loving and caring father’.[16]
(5)The applicant has a prior criminal history dating back to 2015, with the applicant’s first court appearance being for ‘violent and drug offences, including trafficking’; with subsequent court appearances ‘for firearm, dishonesty and drug trafficking’ as well as other drug offences. At the time of the offending for which he fell to be sentenced by the judge, the applicant was on a community correction order (‘CCO’) which had been imposed in May 2022 as part of a combination sentence.[17]
(6)When the applicant was released from custody in 2019, he was able to find full-time employment. Unfortunately, due to the COVID pandemic, the applicant lost that job and ‘relapsed to substance abuse’. The applicant then ‘rekindled associations with offending peers and [was] using a significant amount of drugs’. As the judge put it, the applicant’s drug use at the time of his offending did not excuse his conduct, though it helped to provide some explanation for it.[18]
[13]Ibid [17].
[14]Ibid [18].
[15]Ibid [19].
[16]Ibid [20].
[17]Ibid [21].
[18]Ibid [22].
The judge noted that the applicant’s plea counsel relied on the applicant’s childhood experience and exposure to violence as relevant to the offending for which he fell to be sentenced. It was not, however, submitted that any evidentiary connection between the applicant’s background and the offending had been established. The judge said that she accepted that the applicant’s moral culpability for the offending was reduced ‘in the general way as discussed in [the] authorities’.[19]
[19]Ibid [23].
The judge took into account the applicant’s plea of guilty, accepting that there was a utilitarian benefit in the plea and that the applicant was remorseful for his actions as set out in the applicant’s letter to the court and other material tendered on the plea.[20]
[20]Ibid [24]–[26].
The judge noted that the applicant had been in custody since December 2022 and, at that time, the effects of the pandemic were still being felt within the prison system, making the applicant’s time in custody more burdensome than it would have been pre-pandemic. The judge said that she took into account that matter and the possibility that, in the future, the applicant’s time in custody might be more burdensome than it would have been in pre-pandemic times.[21]
[21]Ibid [27].
The judge summarised the submissions made by the applicant’s plea counsel and the prosecutor on the applicant’s prospects of rehabilitation. The judge said that she regarded the applicant’s prospects of rehabilitation ‘as guarded and clearly dependent on [him] attaining stability with work and family and dealing with both [his] psychological issues and drug abuse’.[22]
[22]Ibid [28]–[30].
Under the heading ‘Objective Seriousness’, the judge observed the following matters:
(1)The prosecution conceded that Ezergailis was the driving force or instigator of the offending. It was she who arranged for the applicant to attend the complainant’s house, and it was she who had ‘some dispute over property’ with the complainant.
(2)The applicant maintained that he was unaware that Ezergailis had arranged for others to attend the house, and that they were present when he arrived at the house. In any event, the applicant continued with the offending once he became aware of their presence, and was involved throughout.
(3)The assault took place with a weapon, and the applicant slashed the complainant a number of times.
(4)The maximum penalties and categorisation of two of the offences for which the applicant fell to be sentenced were ‘reflective of the seriousness with which Parliament regards this kind of offending’.
(5)The applicant was on a CCO at the time of the offending.[23]
[23]Ibid [31]–[37].
As to parity, the judge noted that Ezergailis had been sentenced, in respect of her involvement in the offending against the complainant, to a term of imprisonment of four years, with a non-parole period of two years and one month. The judge then said:
It was not submitted that principles of parity applied given her [Ezergailis’s] lack of priors, full admissions, different factual basis of the assault charge and you [the applicant] being before the Court on an additional serious drug matter.[24]
[24]Ibid [38].
The judge concluded her reasons for sentence by saying:
The consequences for an offender should be significant where a number of people are involved in the unlawful entry to somebody's home and the degree of offending places the occupants in fear. This is more so in this case where the conduct involves an individual being targeted, taken against his will and assaulted with a knife. Just punishment, general deterrence and community protection are all important sentencing considerations. Given your history, specific deterrence is also important, especially in relation to drugs. These need to be balanced with matters in mitigation including your plea and matters personal to you.
Your counsel conceded a term of imprisonment with a non-parole period was the only appropriate disposition. Further, she submitted that given the factors she relied upon regarding your rehabilitation prospects, you should be sentenced with a shorter than usual non-parole period and receive significant support and supervision on parole.[25]
[25]Ibid [39]–[40].

Applicant’s submissions

In his written case filed in this Court, the applicant dealt with his 3 proposed grounds of appeal collectively. In summary, the applicant made the following observations and submissions:
(1)Relying upon this Court’s decision in Farrugia v The Queen,[26] the applicant submitted that the judge was required, but failed, to achieve ‘appropriate relativity’ between the sentence imposed on the applicant and the sentence imposed on Ezergailis. Additionally, the judge failed to apply the totality principle in this ‘appropriate relativity’ context.
(2)On the charge of intentionally causing injury, the applicant received a sentence of 2 years’ imprisonment and Ezergailis received a sentence of 2 months’ imprisonment. This differential, it was submitted, ‘well and truly reflected’ the applicant’s greater involvement in that offence; the fact the applicant had a more extensive prior criminal history than Ezergailis; and the fact that, unlike Ezergailis, the applicant was on a CCO at the time of the offending.
(3)It is to be remembered that the applicant was not the instigator of the common criminal enterprise in which he and Ezergailis were involved in their offending against the complainant.
(4)Unlike in the case of Ezergailis, there was also a finding in the applicant’s case that his moral culpability was reduced.[27]
(5)Relying on this Court’s decisions in DPP(Cth) v Maxwell[28] and Ellis v The Queen,[29] the applicant submitted that, in imposing an appropriate individual sentence on charge 4, the judge was required to have regard to the different sentencing considerations relevant for the drug trafficked by the applicant;[30] as well as having regard to the reduced sentencing range for trafficking in a commercial quantity of this particular drug.[31]
[26](2011) 32 VR 140, 142–148 [8]–[31]; [2011] VSCA 24 (Redlich and Bongiorno JJA) (‘Farrugia’).
[27]Reasons, [23].
[28]DPP (Cth) v Maxwell (2013) 228 A Crim R 218; [2013] VSCA 50 (Maxwell P, Weinberg and Priest JJA) (‘Maxwell’).
[29]Ellis v The Queen [2018] VSCA 221 (Whelan and Beach JJA) (‘Ellis’).
[30]Maxwell (2013) 228 A Crim R 218, 223 [20]–[21].
[31]Ellis [2018] VSCA 221, [29].
In oral argument, the applicant emphasised that it was the judge’s cumulation of two years of the sentence imposed on charge 4 (being 60 per cent of the sentence imposed on that charge) which destroyed the appropriate relativity (needed to exist in all of the circumstances of this case) between the sentences of the applicant and Ezergaili, and which thus resulted in a sentence being imposed on the applicant which had not properly taken totality into account and was manifestly excessive.
In summary, the applicant contended that the order made by the judge that 2 years of the 3 year sentence imposed on charge 4 be served cumulatively ‘violated the appropriate relativity requirement as between the applicant’s sentence and that of the co-offender Ezergailis’ and ‘failed to have sufficient regard to the principle of totality’ and resulted in a total effective sentence and non-parole period which were both manifestly excessive.

In support of that contention, the applicant observed that his total effective sentence was three years longer than that imposed on Ezergailis; and his non-parole period was more than double Ezergailis’s non-parole period. The applicant submitted that these ‘differentials’ indicated that the sentencing discretion had miscarried in the three ways alleged in his three proposed grounds of appeal.

The applicant’s principal authorities

Given the applicant’s reliance upon the decisions of Farrugia, Maxwell and Ellis, it is necessary to say something about each of these cases before considering the applicant’s proposed grounds of appeal.

Farrugia v The Queen

The relevant facts of Farrugia may be summarised as follows:
(1)The appellant pleaded guilty to one rolled-up count of robbery involving five instances of robbery (count 1); one count of false imprisonment (count 2); and one further count of robbery (count 3). He was sentenced to two years’ imprisonment on count 1, one year’s imprisonment on count 2 and 18 months’ imprisonment on count 3. Four months of the sentence imposed on count 2 and eight months of the sentence imposed on count 3 were ordered to be served cumulatively on the sentence imposed on count 1 and on each other, making a total effective sentence of three years’ imprisonment.
(2)The appellant’s brother (Matthew) pleaded guilty on the same day before the same judge to one rolled-up count of robbery involving 18 instances, together with related counts of armed robbery and indecent assault. Matthew was sentenced to three years’ imprisonment on the rolled-up count of robbery, three years and six months’ imprisonment on the count of armed robbery, and two years’ imprisonment on the count of indecent assault. After orders for cumulation, this resulted in a total effective sentence of five years’ imprisonment.
(3)The robberies committed by the appellant and his brother were all committed against the same victim, although the brothers had acted individually in their offending. In the case of the appellant, the offences were committed over a period of one and a half years and involved stealing $3,935.70. In the case of Matthew, the offences were committed over a period of five years and involved stealing $142,000.
(4)Additionally, the appellant and his brother used a ‘similar modus operandi’. As was submitted by the appellant, and accepted by the Court, ‘they were associated with one another and had been introduced to the victim as a potential target by their father who, as the sentencing judge found, embedded in them the notion that the victim was an “easy touch”; they had the same type of relationship with the victim; they offended against the victim during the same period and the victim did not distinguish between them in terms of their threats and intimidation or its effect upon him’.[32]
(5)There was no material difference in the personal circumstances of the appellant and Matthew, save that Matthew had a history of non-compliance with court orders. Yet, as the court put it, ‘the appellant received a sentence only four months less than Matthew for the robberies each had committed’.[33]
[32]Farrugia (2011) 32 VR 140, 145 [20].
[33]Ibid 147 [28].
At issue before the Court was the apparent ‘lack of due proportion’ between the sentences passed on the applicant and his brother in respect of the robberies each had committed of the same victim. In upholding the appellant’s submission that there was an unjustifiable lack of disparity between the sentences imposed upon him and his brother on the robbery counts, the Court said:
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight.[34]

DPP (Cth) v Maxwell

[34]Ibid 147 [27].

In Maxwell, the respondent pleaded guilty to two counts of importing a commercial quantity of a border-controlled drug (gamma butyrolactone or GBL). On the first charge, she was sentenced to three years’ imprisonment. On the second charge, she was sentenced to two years and six months’ imprisonment, 12 months of which was cumulated on the sentence on charge 1 — making a total effective sentence of four years. A non-parole period of two years was fixed. The Crown appealed against the sentence on two grounds: first, the judge erred in assessing the seriousness of the offending; and secondly, the sentence was manifestly inadequate. The amount imported by the offender in Maxwell was, in total, a little over three times the commercial quantity for GBL (the commercial quantity under the relevant Commonwealth provision then being 1 kg). It had a wholesale value of between $6,600 and $9,000; and a street value between $10,440 and $17,400.
In dealing with relevant sentencing principles, the court said (in a passage relied upon by the applicant):
The sentencing regime being quantity-based, the scale of the importation will almost always be a very significant factor in sentencing. Ordinarily, the larger the quantity imported, the more serious will be the offence (other things being equal). Since importations can involve many multiples of a commercial quantity of the drug in question, it is quite correct to say that an importation which involves (only) one or two multiples is ‘at the bottom end’ of the quantitative scale. But there is another important factor in the present case — the low financial return (likely to be) derived from sales of GBL.
In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring — or is expected to bring — a large financial reward to the offender will be more serious than one where the expected reward is small or non‑existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.[35]
[35]Maxwell (2013) 228 A Crim R 218, 223 [20]–[21] (citations omitted).
In dismissing the appeal, the Court referred to sentencing practices in relation to the offence of importing a commercial quantity of GBL as follows:
On the plea, counsel for the Director helpfully referred the sentencing judge to a series of decisions concerning sentences imposed for importing a commercial quantity of GBL. …
The submission for the Director on the appeal — though not on the plea — was that, insofar as these decisions reflected a distinct sentencing practice for the importation of this particular drug, that practice was indefensible as a matter of sentencing law. According to the submission, sentencing courts had, without reasonable justification, consistently imposed lower sentences for the importation of a commercial quantity of GBL than for the importation of equivalent quantities of other drugs such as heroin and cocaine. This sentencing differential was said to be incompatible with the quantity‑based sentencing regime, and this Court was invited to say so.
We would reject this submission. In our opinion, the consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential to which we have referred. Indeed, the very consistency of the sentencing practice can be seen to reflect the fact that sentencing judges view a drug offender’s culpability as materially reduced in a case such as this, where the likely financial reward is relatively small.
Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general. As has often been said, the sentence to be imposed for a drug importation (or trafficking) offence must signal both to the offender, and to other would‑be offenders, that the potential financial rewards to be gained from such activities are outweighed by the risk of severe punishment. Obviously enough, the greater the anticipated reward, the more powerful the deterrent message must be. The converse is also true.[36]

Ellis v The Queen

[36]Ibid 226–227 [31]–[34] (citations omitted).

In Ellis, the applicant pleaded guilty to one charge of trafficking in a drug of dependence (alprazolam) (charge 1); one charge of trafficking in not less than a commercial quantity of a drug of dependence (1,4-butanediol) (charge 2); one charge of possessing a drug of dependence (cannabis) (charge 3); and a summary charge of dealing with property suspected to be the proceeds of crime. On charge 2, the applicant was a sentenced to a term of imprisonment of four years. Overall, he was sentenced to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of three years. The applicant sought leave to appeal against her sentence on the ground that the sentences imposed (including the sentence imposed on charge 2) were manifestly excessive.
In referring to the reasons of the sentencing judge, this Court said:
The sentencing judge said he had had careful regard to the decision of DPP v Maxwell, in which this Court considered the relationship between the financial reward anticipated by a drug offender and the objective gravity of the offence. The judge noted the Crown’s concession that 1,4-butanediol is less profitable than other drugs of dependence. The sentencing judge accepted the applicant’s counsel’s submission that the applicant’s offending ‘lies at the lower end of the range of offences of trafficking in a commercial quantity of a drug of dependence’.[37]
[37]Ellis [2018] VSCA 221, [19] (citations omitted).
The applicant in Ellis fell to be sentenced on charge 2 on the basis that she trafficked in an amount which was 1.75 times the prescribed commercial quantity of 1,4-butanediol. In refusing the applicant leave to appeal, this Court noted that a review of sentences for the offence of trafficking in not less than a commercial quantity of 1,4-butanediol showed that sentences well below four years’ imprisonment might be imposed where there were no relevant prior convictions or where there were unusual mitigating features; but otherwise, the sentences ranged from two and a half years to five years’ imprisonment.[38]
[38]Ibid [29].

Consideration

Putting to one side the sentence imposed upon the applicant for trafficking in a commercial quantity of a drug of dependence (charge 4), and considering only the sentences imposed on charges 1, 2 and 3 for the home invasion, causing injury intentionally and kidnapping, there could be no realistic complaint by the applicant about the level of those sentences. Sentencing the applicant to a total effective sentence of five years’ imprisonment in respect of charges 1, 2 and 3 (as her Honour did) could not, in the circumstances of this case, reasonably be the subject of any complaint concerning parity (Ezegailis having been sentenced to a total effective sentence of four years in respect of the same three offences), totality or manifest excess.
Dealing first with the issue of parity with Ezergailis in relation to the sentences she received for the home invasion, causing injury intentionally and the kidnapping of the complainant, the following points may be made:
(1)While Ezergailis was the instigator of this offending, the applicant had a much greater role in the intentional injury inflicted on the complainant — he being the one who used the box cutter.
(2)While the sentencing judge accepted that the applicant’s moral culpability was reduced in the general way described in the authorities,[39] the judge who sentenced Ezergailis did so on the basis that the objective seriousness of her involvement in the offending was reduced compared to that of the applicant.[40]
(3)While Ezergailis did not have a relevant prior criminal history,[41] the applicant had a significant criminal history which included firearms/weapon offences and offences of violence (unlawful assault and affray).[42]
(4)Unlike Ezergailis, the applicant was on a CCO at the time of his offending.
[39]Reasons, [23].
[40]Ezergailis Reasons, [49]–[53].
[41]Ibid [9].
[42]See further, Reasons, [21].
In any event, and for completeness, it must be noted that experienced senior counsel who appeared for the applicant on the plea[43] did not make any submission to the sentencing judge on the issue of parity, nor otherwise advance any parity-related argument in relation to the sentence which had previously been imposed on Ezergailis.[44]
[43]Not counsel who appeared on this application.
[44]See also, Reasons, [38].
Secondly, on the issue of totality and manifest excess in relation to the sentences imposed on charges 1, 2 and 3 on the applicant, when one has regard to the very serious nature of that offending and all of the relevant circumstances of the applicant, it could not sensibly be suggested that a total effective sentence of five years for that offending infringed the principle of totality or was wholly outside the permissible range of sentencing options available to the judge. The contrary is simply not reasonably arguable.
I turn now to the three year sentence imposed on charge 4 for trafficking in a commercial quantity of a drug of dependence, of which only two years was cumulated on the sentences imposed on charges 1, 2 and 3. The first point to make is that, while one cannot get too carried away about the arithmetic, the sentence imposed on charge 4 was only 12 per cent of the maximum penalty; with the amount cumulated by the judge only being 8 per cent of the maximum penalty. A complaint that such a sentence was wholly outside the permissible range of sentencing options available to the judge might be thought by some to be unduly optimistic (particularly in light of the applicant’s prior convictions), unless there were extraordinary matters to be taken into account in mitigation.
Accepting the (at least) implied assertion by the applicant that there is a relevant equivalence between the importation offence referred to in Maxwell and the trafficking offence the subject of charge 4, as well as a relevant equivalence between the drug the subject of the charges in Maxwell (GBL) and the drug the subject of charge 4 in this case (1,4-Butanediol),[45] and giving full effect to the passages relied upon by the applicant in Maxwell and Ellis, it is difficult (if not impossible) to see how it could sensibly be contended that the sentence imposed on charge 4 was, in the circumstances of this case, manifestly excessive. As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[46] 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 of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[47]
[45]As to which, see the different entries for each drug in sch 11 of the Drugs, Poisons and Controlled Substances Act 1981. But note also that the commercial quantity threshold in sch 11 for both drugs is two kgs.
[46]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[47]Ibid.
The applicant pleaded guilty to trafficking in an amount of 1,4-butanediol that was a little over five times the commercial quantity threshold. This was more than the amount involved in the offending the subject of Ellis. While current sentencing practices are only one of the matters a sentencing judge is required to take into account, Ellis suggests that the sentence imposed on charge 4 could not sensibly be described as being wholly outside the permissible range. Moreover, the fact that the applicant had prior convictions for drug offences (including trafficking) make any argument that the sentence imposed on charge 4 was manifestly excessive even more untenable.
Next, to the extent that the applicant submitted that Farrugia required the judge to take any significant account of the sentence imposed on Ezergailis when imposing sentence on charge 4 (a charge that had nothing to do with Ezergailis), that submission must be rejected. The analysis in Farrugia did not involve any comparison between the ultimate total effective sentences imposed upon the two brothers the subject of that decision. The analysis was limited to a comparison between the sentences imposed only on the robbery charges. The ‘appropriate relativity’ that, in an appropriate case, might be required by Farrugia is only necessary in respect of offending which is ‘very similar and is in some way related’.[48]
[48]Farrugia (2011) 32 VR 140, 147 [28].
More specifically, the fact that, because the applicant committed a serious offence unrelated to any of Ezergailis’s offending, which resulted in him receiving a total effective sentence that was three years longer than that imposed on Ezergailis (and a non-parole period which was more than double Ezergailis’s non-parole period), says little (if anything) about the appropriateness of the applicant’s sentence. One might ask rhetorically, could it seriously be suggested that no matter how serious one co-offender’s unrelated offending might be, a judge sentencing that co-offender is required to ensure that there is ‘appropriate relativity’ between the total effective sentences of both co-offenders in respect of all of their offending, irrespective of how unconnected or irrelevant the co-offender’s discrete offending might be to the offending of the other co-offender.
While the sentencing judge was obviously required to consider the sentences that had been imposed on Ezergalia, in formulating the appropriate sentences to be imposed on the applicant, as part of the overall sentencing synthesis (which synthesis would also include consideration of the total effective sentences for both the applicant and Ezergailis in relation to the total criminality of each of their offending), she was not required to arrive at any particular result, so far as ‘relativity’ was concerned, in respect of the applicant’s unrelated offending on charge 4.
When one looks at all of the circumstances of the applicant’s offending, together with his personal circumstances, and makes an appropriate and relevant comparison between the sentences and circumstances of the applicant and Ezergailis (including the offending to which they were both parties as required by principles of parity, and the various sentences, the total effective sentences and non-parole periods imposed on both of them), there is no basis for any contention that the judge’s sentencing discretion miscarried in any of the three ways alleged in the applicant’s three proposed grounds of appeal.
More specifically, the modest cumulation of two years of the sentence imposed on charge 4 did not infringe any arguable requirement for appropriate relativity between the sentences of the applicant and Ezergailis; nor did it give rise to any totality problem; and nor did it make the sentence imposed on the applicant manifestly excessive. The contrary is not reasonably arguable.

Conclusion

The applicant’s proposed grounds of appeal being devoid of merit, his application for leave to appeal against sentence must be refused.
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[2024] VSCA 270

15 November 2024