R v Holden

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 14 of 1999

THE QUEEN

v.

XAVIER DAVID HOLDEN

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JUDGES:	TADGELL, ORMISTON and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	21, 22 February 2001
DATE OF JUDGMENT:	16 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 63

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CRIMINAL LAW - Giretti count of drug trafficking – Validity of presentment – What constitutes “making” presentment under s.353(1) of Crimes Act 1958 – Constitutionality of Commonwealth law allowing Commonwealth prosecutor to prosecute for State offences – Application of Jones v. Dunkel principle to criminal trials – Trial judge not bound to give direction concerning failure by the Crown to call witnesses – Whether trial judge misdirected jury – Sentencing – Parity – Whether trial judge erred in failing to take into account delay between arrest and trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. N.T. Robinson and Ms L.A. Taylor	Solicitor for the Commonwealth Director of Public Prosecutions
For the Applicant	Mr. D.C. Dealehr	Issac Brott & Co.

TADGELL, J.A.:

I agree with Chernov, J.A., whose draft reasons I have had the advantage of reading, that for the reasons he has assigned each of the applications should be dismissed.

ORMISTON, J.A.:

These applications should each be dismissed for the reasons stated by Chernov, J.A. in his reasons for judgment which I have had the benefit of reading in draft form. I also agree with his reasons for rejecting the foreshadowed alternative ground for attacking the validity of the presentment.

I wish only to add the following. The presentment signed by Mr Pedley as a Crown Prosecutor for the State of Victoria contained the misleading endorsements set out in paragraph [25] and footnote 21 of his Honour’s judgment. They were misleading because they did not truly reflect the nature of the document or how it came to be filed. On the face of it those endorsements suggested that the “presentment” was being treated as an indictment and filed by the Commonwealth Director of Public Prosecutions on his own behalf. If in fact that was what had occurred, there may arguably have been some difficulty, given that both “filing”, as well as signing, the presentment had to be carried out by a Victorian Crown Prosecutor. (For the present I shall ignore the precise effect of s.17 of the Director of Public Prosecutions Act (C’th) and to what extent that section authorises the Commonwealth Director’s staff to act in aid of a state prosecution.) In my opinion the filing to which the authorities refer, especially R. v. Parker[1], is not a mere filing by depositing the piece of paper on the counter of a court registry. It is more than apparent, especially from the judgments of Young, C.J. and Murphy, J. in that case, that the filing of a presentment involves an element of publicity which is why the filing takes place in open court in the sense that, when presentment is made, the

signed presentment is handed up to judge or associate in open court, the associate being required to pass the document to the Prothonotary or Registrar, as the case may be, for ultimate retention on the court files.

[1][1977] V.R. 22.

It is unnecessary here to examine the history of the presentment: it is sufficient to say that the majority (Young, C.J. and Murphy, J.) in Parker saw the process of “making presentment” as having been derived from and being analogous to the procedure whereby the grand jury brought in a true bill which was delivered “in open court” to the appropriate official of the court for the purpose of the accused’s arraignment and trial.[2] So, as Young, C.J. expressed it[3], “[s]ome public act whereby the formal accusation is brought to the attention of the court is, I think, required”. Moreover, as I would understand it, the mere ministerial filing at an office of the relevant court is not sufficient, unless it is specifically authorised by statute or rules.[4] Thus the word “file” connotes something more formal and public, certainly something less perfunctory than that required on the civil side of the court. The reason for this may be, I would venture to suggest, that filing on the civil side rarely is made a basis of giving notice (except where a party has no solicitor on the record) in that it is essentially, and certainly was in the past, merely a means of record-keeping, whereas the “filing” here under consideration is the “formal”, “public” and “official” means of informing the court of the making of a criminal charge.[5] So Murphy, J. said[6]: “The word ‘filing’ … must … be taken to be a reference … to the act of handing a duly signed presentment to the judge’s associate or to the clerk of the arraigns or assize respectively”.
[2]Parker (1977) V.R. at 26, 38, 41.
[3]Parker at 29.
[4]Cf. per Murphy, J.; Parker at 38-39, 40.
[5]Cf. per Young, C.J.; Parker at 25.
[6]Parker at 40.

I would therefore conclude that by application of common law principles the act of making presentment requires signature of a duly appointed prosecutor and the handing of the presentment to the judge’s associate on behalf of the Court. Its ultimate filing away in the court records is therefore incidental. Moreover it would be insufficient for the purpose of making presentment if the solicitor for the Director of Public Prosecutions, whether State or Commonwealth, merely took a presentment to the court office, here the County Court registry, and handed it over the counter, for filing in that way would lack the necessary element of publicity.

It is conceivable that the machinery for making presentment has been affected by statute or rule but in my opinion, although there are a number of specific provisions relating to presentments, they are careful not to disturb existing authority. Section 353 of the Crimes Act is essentially unchanged in its form. Section 4 of the Crimes (Criminal Trials) Act 1993, then in operation, referred merely to the filing of a presentment, although s.4(2) of the Crimes (Criminal Trials) Act 1999 appears to distinguish the making of presentment and the filing of it in court.[7] Under rule 11.04 of the County Court Miscellaneous Rules 1989, then in force, but identical to the same rule in Chapter 2 of the 1999 County Court Rules, it is laid down:

“Whenever presentment is made at the County Court, the associate to the judge before whom presentment is so made shall cause the presentment to be filed with the Registrar and for the purposes of these rules a presentment shall be deemed to be filed immediately upon presentment being made.”[8]

In my opinion this rule assumes that presentment will be made in the manner contemplated by Parker but it makes specific provision as to the manner and timing of the filing.

[7]It reads: “The prosecutor must … cause presentment to be made at, and filed in, the court.”

[8]Rule 4.03(1) of Chapter 6 of the Supreme Court Rules is in a somewhat different form, it being contemplated that the presentment shall be “lodged” with the Prothonotary who is required to “immediately deliver it to the associate to the judge before whom presentment is to be made”. Not only is the word “lodged” used but para.(1B) provides that the presentment is “taken to be filed upon presentment being made”.

One may note that, other than the procedure for handing up the presentment by counsel for the prosecution to the judge’s associate, the final step of placing the presentment on the court file under the County Court Rules is left to the associate who is required to “cause” it “to be filed with the Registrar”. Thus no ministerial act of filing is required to be carried out by the solicitor for the Director of Public

Prosecutions; the filing, contemplated by Parker, is effected by counsel handing the document to the associate who then takes the necessary step to place it on the court files.

Thus the endorsement in this case was quite inappropriate for there was no filing contemplated by either Parker or the Rules which might have been carried out by the solicitor for the Director of Public Prosecutions in this case. The only filing was effected by Mr Maidment, as the delegate of Mr Pedley. That element of the making of presentment was carried out by a prosecutor for the Crown in Victoria, Mr Pedley, through his delegate who was a member of counsel instructed in the customary way. Moreover, although the basic rule discussed in Parker contemplates, indeed in many senses requires, that a Crown prosecutor who signs a presentment shall also effect the so called “filing” by handing it to judge or associate in court, that function has been held to be capable of being delegated, albeit to counsel who would appear in open court to effect such filing.[9]
[9]Cf. Parker per Young, C.J. at 29 and per Murphy, J. at 42.

In the circumstances, therefore, what might on the face of the document appear to have been effected by the solicitor for the Commonwealth Director of Public Prosecutions was not effected in that way and to that extent the annotations on the back sheet to the presentment were a misstatement. Consequently, I am of opinion that presentment was duly made in this case, the final step of filing being effected by counsel handing the presentment to the judge’s associate. It is therefore unnecessary to consider whether s.17 of the Commonwealth Act would have authorised the solicitor for the Commonwealth Director of Public Prosecutions to effect filing in some other way.

CHERNOV, J.A.:

The applicant, who is now aged 44, was arrested by the Australian Federal Police (“the AFP“) on 11 January 1995 and charged with trafficking in heroin between 1 August and 10 October 1994 contrary to s.71(1) of the Drugs, Poisons and

Controlled Substances Act 1981 (“the Drugs Act“). He was eventually arraigned in the County Court at Melbourne and pleaded not guilty to that charge and, after a trial lasting some 19 days, the jury returned a verdict of guilty on 18 December 1998. Following a plea in mitigation made on his behalf, the applicant was sentenced on 4 February 1999 to a term of four years and six months’ imprisonment with a non-parole period of two years and six months. On 17 February 1999, notices of application for leave to appeal against conviction and sentence were filed by the applicant’s solicitors. On 4 August 1999 the Registrar granted the applicant leave to file substitute grounds in respect of both notices. As a result, there were nine grounds in support of the application for leave to appeal against conviction and six grounds in support of the application for leave to appeal against sentence, although not all of them were pursued.[10] I set out the grounds that were pressed.
Grounds relating to conviction
(i)That the learned trial judge erred in ruling admissible telephone intercept material which suggested and/or implied that the appellant was or had been engaged in dealing and/or trafficking in other illicit substances and commodities;
(ii)that the learned trial judge by admitting the said material and evidence compelled the appellant to give oral evidence upon issues which were not probative of any issue relevant to the count of trafficking in heroin particularised in the Presentment upon which he was arraigned and tried and severely prejudiced the appellant in the conduct of his defence;
(iii)that the learned trial judge erred in ruling that the prejudicial nature of the material did not outweigh its probative value (if any);
(iv)that the Commonwealth Director of Public Prosecutions did not have the power or jurisdiction/status to prosecute the appellant in respect of a State criminal offence being an offence under section 71(1) if (sic) the Drugs Poisons and Controlled Substances Act 1981 (Victoria);
(v)that the learned trial judge misdirected the jury by commenting that the explanation proffered by the appellant as to his dealings with one Carmody regarding a transaction occurring on 7 September, 1994 even if accepted by the jury could be disregarded on the basis that Carmody believed there was an ongoing business of trafficking thereby suggesting that the intention of and/or belief of the appellant was not relevant to their deliberations;
(vi)that the learned trial judge erred in directing the jury that the Crown failure to call certain witnesses would not have affected the position of the appellant in the conduct of his defence.
(vii)(a) that the learned trial judge misdirected the jury as to the evidence of one Miethke (who was called by the appellant) when the learned trial judge said that Miethke’s evidence did not help or hinder either side and that his evidence was “perhaps beside the point” and/or that his evidence highlighted the dangers as to whether the conversations said to have taken place related to trafficking in heroin, marijuana or some other thing.
[10]The appeal was heard on 21 and 22 February 2001. The delay between the date when the new grounds were substituted and the date of the hearing of the appeal was brought about in part by the agreement that was made between the applicant and the Crown that the hearing should await the outcome of the High Court judgments in R. v. Bond (2000) 169 A.L.R. 607 and R. v. Hughes (2000) 171 A.L.R. 155. Further delay occurred because of difficulties that were encountered by the applicant in obtaining representation.

Grounds relating to sentence
(iii)The learned sentencing judge failed to give any or any proper weight to parity of sentence among co-offenders;
(v)failing to ameliorate the sentence to be imposed by taking into account the delay between the appellant’s arrest and the commencement of the trial which delay was not caused by/contributed to by the appellant herein.

Because ground (iv) of the proposed appeal against conviction involved a matter under the Commonwealth Constitution or its interpretation within the meaning of s.78B of the Judiciary Act 1903 (Cth.), notices dated 22 December 1999 were served by the applicant and the Attorney-General pursuant to that section. No relevant government, however, appeared before us in response to the notices. I will refer later to the relevant contents of the notices when I deal with the applicant’s argument in support of ground (iv).

Before examining the relevant grounds, it is necessary to set out briefly the circumstances relating to the applicant’s alleged offending conduct and the Crown case against him. It was alleged that the applicant on-sold heroin which he had obtained from Christopher John Carmody (“Carmody“) who had imported it unlawfully into Australia. Carmody and his wife Kim Dung Thi Carmody (“Mrs. Carmody“) were also arrested by the AFP on 11 January 1995 and were charged with various heroin offences which I will describe in more detail later.

It is common ground that the applicant and Carmody had been friends since approximately 1989 and that, in 1994, Carmody acted for the applicant as his barrister in a substantial piece of commercial litigation in which the applicant was the plaintiff. According to the applicant, he believed that he would win the case and recover a very substantial sum by way of damages and, therefore, he was keen to see that Carmody devoted the necessary time to his case. In 1994 Carmody had imported a quantity of heroin into Australia. He intended to use some of it for himself and re-sell the rest at a profit. The applicant had been a user of marijuana and had been involved in trafficking the drug through a network of friends and acquaintances. Carmody, who gave evidence for the Crown at the applicant’s trial, said that, in the course of discussions with the applicant in approximately mid-1994, he learned that the applicant had a familiarity with the market for drugs and, therefore, he decided to recruit him to on-sell his heroin through the applicant’s existing network. To that end, he provided him with samples of heroin for the purpose of attracting customers and on other occasions supplied heroin to the applicant for re-sale. As the sentencing judge noted, the jury found by their verdict that, during the relevant period, the applicant trafficked in heroin all or nearly all of which was supplied to him by Carmody. The quantity of the Carmody sourced heroin that was trafficked by the applicant totalled some 20 grams and the largest amount that was involved in any one transaction was 14 grams which Carmody supplied to the applicant on 7 September 1994. Part of the drug was sold by the applicant on that day through Peter Stein (“Stein”) who, as will be seen later, was charged with trafficking in heroin on 7 September 1994 and was convicted in the Magistrates’ Court for this offence.

It is convenient to mention at this stage that, at his trial, the applicant did not deny that he had received heroin from Carmody for sale. He denied, however, that he participated in an ongoing business of trafficking in heroin during the relevant period. His defence was that he engaged in the on-selling of the drug in order to destroy Carmody's drug-related business and thus, force him to devote more time to his proceeding. The applicant claimed that he was becoming increasingly concerned in the second half of 1994 that Carmody was devoting too much of his time to his heroin-related business and was doing so at the expense of his case. Consequently, he said, he thought that if Carmody's heroin business came to an end he would devote the appropriate time to the litigation. He therefore devised a scheme to ruin Carmody's business. It involved acquiring heroin from him, substituting for it or diluting it with fructose and then releasing the very low quality substance on the market. The applicant’s theory was that any heroin user who purchased the product from him would not come back for the purpose of acquiring heroin with the result that Carmody’s drug business would collapse.

The Crown case against the applicant was almost wholly circumstantial and was based principally on the evidence of two sets of taped telephone conversations, one between the applicant and Carmody and the other between the applicant and a number of other persons. The telephone conversations had been recorded by the AFP pursuant to telephone intercept warrants issued by judges of the Federal Court. The Crown alleged that the conversations related to the applicant's dealing in heroin. I will deal later with the circumstances in which that evidence, particularly the evidence of telephone conversations between the applicant and persons other than Carmody, was led during his trial.

Given one of the grounds on which the applicant relies in support of his application for leave to appeal against sentence, it is necessary to describe briefly the progress of the prosecution against him.

On 13 November 1995 the contested committal proceedings against the applicant and the Carmodys commenced at the Melbourne Magistrates’ Court. The applicant was separately represented. On 15 December 1995 the applicant and the Carmodys were committed to stand trial in the County Court at Melbourne. On 22 November 1995, Carmody instituted review proceedings in the Federal Court in relation to the several electronic surveillance warrants that had been issued to the AFP in connection with his alleged offending. On 24 April 1996 a joint indictment/presentment (“the joint indictment”) was filed in the County Court against the applicant and the Carmodys, charging each with separate offences. Although the three co-accused were arraigned on 25 June 1996, the proceeding was effectively adjourned on the application of Carmody, albeit with the support of the applicant, to await the resolution of the Federal Court proceeding. Carmody’s application to the Federal Court was eventually dismissed by its Full Court on 30 July 1997. At the mention hearing held on 21 August 1997 before the Chief Judge, the Carmodys sought a further adjournment of the trial on the dual bases that an application for special leave to appeal to the High Court had been filed and that, in any event, they were not in a position to fund the trial. An adjournment was also sought on behalf of the applicant on the ground that Victoria Legal Aid had not determined whether it would provide financial assistance to him in respect of his trial. It was in that context that the Crown informed his Honour that it would sever the joint indictment so that the Carmodys would be charged on indictment and the applicant would be presented separately. In the light of that indication, his Honour adjourned the applicant’s trial to a date to be fixed and refused the Carmodys' application for adjournment.

Thus, on 1 September 1997, the prosecutor, Mr Maidment, filed in the court a new indictment in relation to the Carmodys and a separate presentment (“the Presentment”) alleging one Giretti count of trafficking against the applicant. I will consider later in more detail the circumstances in which the Presentment charging the applicant was signed and filed in court. The trial of the applicant was adjourned to a date to be fixed, but the Carmodys were arraigned and pleaded guilty to all counts in the new indictment; Carmody pleaded guilty to two counts of being knowingly concerned in the importation of heroin in April 1994 and January 1995 respectively contrary to s.233B(1)(d) of the Customs Act 1901 (Cth.) and Mrs. Carmody pleaded guilty to one count of being knowingly concerned in the importation of heroin and to one count of trafficking in heroin contrary to s.71(1) of the Drugs Act. After hearing a plea in mitigation made on their behalf on 1 September 1997, they were sentenced as follows.

(a)Carmody was sentenced to a total effective sentence of six years and six months’ imprisonment with a minimum term of five years. His Honour stated that, but for his co-operation, the total head sentence that he would have imposed would have been seven years and six months with a minimum term of six years.
(b)Mrs. Carmody was sentenced to a total effective sentence of three years’ imprisonment with a minimum term of two years. Following a successful appeal against sentence, her sentence was reduced by this Court[11] on 18 March 1998 to one of three years’ imprisonment with a minimum term of one year and six months’ imprisonment.

[11]Winneke, P., Tadgell and Callaway, JJ.A.

The proceeding against the applicant was further adjourned from time to time until 11 September 1998, principally because of his inability to finalise his application for legal aid. Ultimately, he was unable to obtain legal aid for his trial and consequently, he represented himself.

Application for leave to appeal against conviction

I now turn to consider the grounds which the applicant pursued before us in support of his application for leave to appeal against conviction and I will do so in the order in which they were argued.

Ground (iv) - presentment invalid

Under cover of this ground, Mr. Dealehr submitted that the Presentment was invalid because it was sought to be made by the Commonwealth Director of Public Prosecutions (“the Commonwealth Director”) pursuant to s.353(1) of the Crimes Act 1958 (“the Crimes Act”) whereas the Commonwealth Director had no power so to act under that provision. More particularly, counsel argued that s.353(1) limits the right to make a presentment in respect of an indictable State offence to the State Director of Public Prosecutions (“the State Director”) and a Crown Prosecutor who has been duly appointed under the Public Prosecutions Act 1994 (“the Victorian Public Prosecutions Act”) in the name of the State Director. Mr. Dealehr contended that the “making” of a presentment of any person for a State indictable offence under that provision involves the signing and the filing of it in the relevant court and, until both steps are completed by the State Director or a Crown Prosecutor, the presentment is not “made” for the purposes of the sub-section and, therefore, the prosecution of the person has not commenced. Counsel relied on R. v. Parker[12] as authority for those submissions. Mr. Dealehr went on to argue that in this case, although the Presentment was duly signed by a Crown Prosecutor, it was filed in court by counsel on behalf of the Commonwealth Director and not on behalf of the Crown Prosecutor. Hence, he contended it was the Commonwealth Director who purportedly “made” the Presentment under s.353(1) of the Crimes Act. Since he had no power to do this, said Mr. Dealehr, the Presentment was invalid.
[12][1977] V.R. 22.

Before dealing with Mr. Dealehr’s submission, it is convenient to mention briefly the decision in R. v. Parker[13]. In that case Young, C.J. concluded[14], after analysing, inter alia, the history of the section and the Full Court decision in R. v. Evans[15] that the “making” of a presentment for the purposes of s.353(1) involves the taking of two steps, namely, the signing of an instrument which is in the form or to the effect of the Third Schedule to the Crimes Act by a person authorised to do so by the sub-section and the filing of it thereafter “at the ... Court” by or on behalf of that person. Thus, until the presentment is filed by or on behalf of the person who has the capacity to sign it, it is not validly “made” for the purposes of the sub-section[16]. Murphy, J. agreed[17] that the phrase “presentment at the ... County Court” involves not only the formulation and authorisation of a charge and the signing of the document by the appropriate officer, but also its filing in the court. Gillard, J. was of the same view on this issue[18] although he disagreed with the other members of the court on the question whether, in the circumstances of that case, the presentment had been properly filed. By the time it was filed in court by the solicitor acting for the Crown, the Crown Prosecutor who had signed the presentment had been appointed an acting County Court Judge and was, therefore, disqualified from exercising the powers of a prosecutor. The majority[19] held that, as a consequence, the presentment had not been properly filed and, therefore, was invalid. Once the Crown Prosecutor lost the power or capacity to sign a presentment, he was also deprived of the capacity lawfully to file it in court. Hence, their Honours concluded, he could not have properly authorised the solicitor to do so on his behalf. It is on this issue that Gillard, J. dissented. His Honour was of the view, that, once the presentment has been duly signed, it may be filed by any appropriate person such as an employee of the Crown solicitor, notwithstanding that the signatory had, prior to the filing, lost the capacity to sign a presentment.
[13][1977] V.R. 22.
[14]At 25-29.
[15][1964] V.R. 717 (Dean, Hudson and Little, JJ.).
[16]The physical act of “filing” is ordinarily carried out by the prosecutor who signed the presentment or by a person on his or her behalf, often from the office of the Crown Solicitor, handing the presentment in open court to the judge’s Associate who then causes it to be lodged with the Registrar. See also Rule 11.04(1) of the County Court Miscellaneous Rules 1999 which deems the presentment to have been filed immediately upon it “being made”. These Rules came into operation on 21 June 1999. The Rules of 1989 which applied when the trial commenced, were expressed in the same terms as the 1999 Rules.
[17]At 39.
[18]To the extent that the headnote of this case suggests to the contrary, it is not accurate.
[19]Young, C.J. at 29 and Murphy, J. at 42.

It follows that, in the context of this case, if the Presentment was filed on behalf of the Commonwealth Director, it would not be a valid presentment for the purposes of s.353(1) of the Crimes Act. The respondent did not contend to the contrary, but submitted that the Presentment was not only signed by the Crown Prosecutor but was also filed in court on his behalf and, therefore, was valid. Thus, the only issue between the parties for the purposes of this argument was whether the Presentment was filed in court on behalf of the Commonwealth Director or on behalf of the Crown Prosecutor.

The circumstances in which the Presentment in this case was signed and filed were these. At all relevant times Mark William Pedley (“Mr. Pedley”) was a member of the office of the Commonwealth Director; he was the Deputy Commonwealth Director located in the Melbourne office. It was common ground for the purposes of the argument that is now being considered that, on 4 May 1997, the Attorney-General for the Commonwealth consented to Mr. Pedley holding an appointment as Crown Prosecutor pursuant to s.17 of the Director of Public Prosecutions Act 1983 (Cth.) (“the Commonwealth D.P.P. Act”) and that, not long thereafter, he was appointed Crown Prosecutor by the Governor in Council pursuant to s.31 of the Victorian Public Prosecutions Act and signed the Presentment as Crown Prosecutor for Victoria[20] in late August 1997.
[20]Section 48 of the Victorian Public Prosecutions Act provides that judicial notice shall be taken of such a signature.

I have already mentioned that, on 1 September 1997, Mr. Maidment of counsel, who appeared on that day in the County Court for the Commonwealth Director in relation to the hearing of a plea in mitigation that was made on behalf of the Carmodys, filed in the court the new indictment against them as well as the Presentment. At the time of its filing the Presentment had annexed to it a number of pages which set out the names of witnesses whom the Crown proposed to call at the applicant’s trial and a back sheet which contained the following endorsement at the foot of it:

“This indictment was filed by the:
Director of Public Prosecutions
(Commonwealth)
...”[21]

Mr. Dealehr argued that the endorsement establishes conclusively that the Presentment was filed on behalf of the Commonwealth Director. Hence, he submitted, it was the Commonwealth Director who purported to “make” the Presentment and consequently, it was invalid. In my opinion, Mr. Dealehr’s submission should be rejected. It relies entirely on form and disregards the substance of what had relevantly occurred, namely, that the Presentment was filed on behalf of Mr. Pedley who, at all relevant times, acted in his capacity as State Crown Prosecutor.

[21]The back sheet also described the document as an “INDICTMENT” but that is obviously inaccurate given that it was to be the instrument by which the applicant was to be presented under the Crimes Act in respect of an indictable State offence.

It is clear that the person in the office of the Commonwealth Director who had the responsibility for filing the Presentment in court was Mr. Pedley. Mr. Dealehr accepted that Mr. Pedley intended that it be filed on his behalf and that, to that end, he gave it to Mr. Maidment to file in court on 1 September 1997. It seems apparent that the endorsement was part of the standard form of computer-generated back sheet which was used by the office of the Commonwealth Director to produce back sheets in relation to individual indictments. Variable factors such as names and dates were typed into the computer to produce a back sheet for a particular indictment. Thus, the mere fact that, at the time of its filing, the Presentment had attached to it a back sheet with the standard endorsement for an indictment does not mean that Mr. Pedley thereby evinced the intention that it be filed on his behalf as representative of the Commonwealth Director. It would make no sense to say that Mr. Pedley signed the Presentment in his capacity as Crown Prosecutor, yet had it filed in his capacity as officer of the Commonwealth Director. It seems clear enough that what had occurred was that, because Mr. Maidment was to appear in court on 1 September 1997 in relation to the Carmodys, Mr. Pedley asked him, as a matter of convenience, to file the Presentment in court on his behalf. And that is what Mr. Maidment did. There is no suggestion in the material that at the time of this request Mr. Pedley was acting in any capacity other than the one in which he acted when he signed the Presentment, namely, as Crown Prosecutor. It follows, therefore, that the Presentment was filed on his behalf and was validly “made” for the purposes of s.353(1) of the Crimes Act.

Consequently, this argument must fail because the factual basis for it has not been made out.

Mr. Dealehr next argued that s.17 of the Commonwealth DPP Act was unconstitutional in so far as it sought to permit the State to confer a power on a Commonwealth officer to "make presentment" of the applicant under s.353(1) of the Crimes Act for the State offence. He submitted that, since s.17 was constitutionally invalid to the extent referred to, the Victorian Public Prosecutions Act could not validly authorise the State to appoint a Commonwealth officer such as Mr Pedley to the office of (State) Crown Prosecutor. It was said that the State had no power unilaterally to appoint Mr. Pedley to the position of (State) Crown Prosecutor and thus, authorise him to prosecute the applicant for the State offence in question. Hence, counsel argued, even if the Presentment had been signed by Mr Pedley and filed on his behalf, it was invalid.

It is convenient to mention now that this argument was not foreshadowed in the s.78B notices. In so far as is relevant, what was alleged in them was that s.6(1)(m) of the Commonwealth D.P.P. Act was invalid and that, therefore, the Commonwealth Director had no power to prosecute the applicant in respect of the State offence. No mention was made of the alleged unconstitutionality of s.17 or of the claim that the relevant D.P.P. officer had no power to sign the Presentment. The argument based on the alleged unconstitutionality of s.6(1)(m) was not pursued before us. Rather, as I have said, the applicant contended on appeal that it was s.17 of the Commonwealth D.P.P. Act that was unconstitutional and, therefore, Mr. Pedley lacked the power to sign the Presentment. It is also doubtful if that argument comes within the substituted ground (iv) which alleges that the Commonwealth Director did not have the power to prosecute the applicant in respect of the State offence. As is the case with the s.78B notices, ground (iv) does not contend that the D.P.P. officer (Mr. Pedley) did not have the capacity to sign the Presentment. Be that as it may, however, nothing turns on the failure by the applicant to give notice of this contention in the s.78B notices or to state it specifically in ground (iv) because, after hearing argument in support of this case, the Court formed the view that it was untenable.

It is plain that, absent an appropriate Commonwealth law, the Victorian Public Prosecutions Act cannot confer on the Governor in Council the power unilaterally to appoint a Commonwealth Crown officer, such as Mr. Pedley, Crown Prosecutor and thereby empower him to present a person (under s.353(1) of the Crimes Act) for an alleged breach of a State law.[22]. Section 17 of the Commonwealth D.P.P. Act is a Commonwealth law that, if valid, operates to enable relevant Commonwealth officers to be appointed Crown Prosecutors under the Victorian Public Prosecutions Act for the purpose of prosecuting State offences. The sole ground on which Mr. Dealehr claimed that such an operation of s.17 was constitutionally invalid was that there was no sufficient nexus between the relevant State offence and any head of Commonwealth power. More particularly, it was said by him, the State law creating the offence was in a field where it would be incompetent for the Commonwealth Parliament to legislate.
[22]R. v. Bond (2000) 169 A.L.R. 607 at [15], R. v. Hughes (2000) 171 A.L.R. 155 at [31].

In my opinion, however, there is a sufficient nexus between the State offence and the Customs power of the Commonwealth or the incidental scope of this power to give constitutional validity to s.17 for present purposes. First, the Customs power in the Commonwealth Constitution would entitle the Commonwealth Parliament to legislate in the area or field in which the State offence is found. Thus, for example, the Commonwealth could make a valid law which made it an offence to traffic in a prohibited import such as heroin. The head of power which would support such legislation would also support the relevant operation of s.17.[23] Secondly, the prosecution of the applicant for breach of the State law was ancillary or incidental to the prosecution of the Carmodys for the Commonwealth offences (which were based on, inter alia, the Customs power) and consequently, the relevant operation of s.17 could be supported by that head of power. It was acknowledged by Mr Dealehr in his written outline of submissions that the appellant's alleged offending conduct was ancillary to that of the Carmodys. The interconnection between the offences is perhaps best illustrated by the fact that the Carmodys and the applicant were first charged on a joint indictment. The instrument was signed by an Associate Director of Public Prosecutions of the Commonwealth in respect of the Commonwealth offences and the same person signed the instrument as Crown Prosecutor for the State of Victoria in relation to the State offences charged against the applicant and Mrs. Carmody on that indictment. Mr Dealehr acknowledged that the joint indictment was valid and, by necessary inference, he must be taken to have accepted that s.17 operated to authorise the Commonwealth officer to be appointed Crown prosecutor in order to prosecute, inter alia, the applicant for the very offence which is the subject of the challenged Presentment. In my view, the mere severance of the joint indictment in the manner described earlier did not change that position.
[23]Hughes at [40].

Hence, in my view, Mr. Dealehr’s alternative basis for attacking the validity of the Presentment must inevitably have failed.

Grounds (i), (ii), (iii) - wrongful admission of evidence

These grounds can be considered together because, as Mr Dealehr acknowledged, grounds (ii) and (iii) are merely particulars of ground (i). In essence, it was contended under cover of these grounds that his Honour wrongly admitted evidence of taped conversations between the applicant and persons other than Carmody ("the challenged conversations"). It was argued that, since many of the conversations did not relate to heroin, they were irrelevant and should have been excluded on that ground. In any event, it was said, the evidence should have been excluded by his Honour in the exercise of his discretion because it was unduly prejudicial to the applicant and the prejudice outweighed its probative value. Mr Dealehr contended that the prejudice arose from the following:

(a)the difficulty that confronted the jury in determining what commodities were the subject of these conversations;
(b )the evidence was propensity evidence; and
(c)its admission effectively compelled the applicant to go into the witness box and give evidence about unrelated, allegedly illicit, drug dealings.

In my view, there is nothing in these grounds. First, the evidence was clearly relevant. The Crown case against the applicant was, as I have said, that he trafficked in heroin as an ongoing business as that concept was explained in R. v. Giretti[24]. Moreover, the Crown case was not limited to the claim that the applicant only trafficked in heroin that he obtained from Carmody. In support of its case that the applicant acquired heroin from Carmody for re-sale purposes, the Crown called Carmody to establish the relationship between him and the applicant, the dealings between them in heroin and that the applicant had portrayed himself to Carmody as a person who could on-sell the drug. The Crown also relied in support of its case on the challenged conversations which, it claimed, were capable of demonstrating that the applicant had an established network of people to whom he had trafficked marijuana and to whom he had the ability to sell heroin. Moreover, it was said, some of the conversations were capable of establishing that the applicant trafficked in heroin to a number of his contacts. Despite the fact that seemingly innocent words were used in a number of conversations thereby making it difficult to identify which particular drug was the subject of the conversation, I agree with the respondent’s submission that it was open for the jury to find that those words were codes for illicit drugs and that the taped telephone conversations showed that the applicant had a network to or through which he sold illicit drugs, that he had the ability to on-sell heroin to those contacts and that in a number of conversations, he discussed the supply by him of heroin. Thus, in my view, the taped telephone conversations were relevant and admissible.
[24](1986) 24 A.Crim.R. 112 at 117 per Crockett, J. and at 134 per Ormiston, J.

I am also of the opinion that this evidence was not unduly prejudicial to the applicant so as to warrant excluding it for that reason. In so far as the evidence was capable of establishing that the applicant had the ability and capacity to on sell heroin, its probative value outweighed its prejudicial effect. Similarly, I reject Mr. Dealehr’s characterisation of the evidence as propensity evidence. It was not led to establish that the applicant was the kind of person who was likely to engage in the activity with which he was charged. Moreover, any prejudice that may have resulted from the evidence would have been considerably reduced by his Honour’s careful directions to the jury that they had to be cautious in distinguishing between the evidence that related to the applicant's trading in heroin on the one hand and on the other, to his dealings in other drugs. They were directed that what they had to be satisfied about to the requisite degree was that he trafficked in heroin.

Further, in my view, there is no basis for contending that the applicant was unduly prejudiced because the admission of the challenged conversations compelled him to explain to the jury his involvement in drugs other than heroin. I note that this claim was not put to his Honour by the applicant's counsel during the voir dire that was held in relation to that evidence. Be that as it may, it is clear that the admission of the challenged conversations into evidence did not compel the applicant to go into the witness box to present his defence. Given the nature of his defence, it was necessary for him to explain it to the jury by giving evidence. Once the forensic decision was made by him to go into the witness box, he obviously had to explain to the jury at least some of the telephone conversations in question. In my view, the applicant suffered no greater prejudice by reason of the admission of the challenged conversations into evidence than is suffered by any accused against whom circumstantial evidence is led by the Crown.

In my opinion, therefore, these grounds must fail.

Ground (vi) – failure to give proper direction concerning Crown’s failure to call evidence

As formulated, this ground asserts that his Honour erred in directing the jury that the failure by the Crown to call as witnesses the persons who participated in the challenged conversations "would not have affected the position of the applicant in the conduct of his defence". It is quite clear from the transcript of his Honour's charge, however, that no such direction was given by his Honour and, in the end, Mr Dealehr did not contend to the contrary. Thus, this ground as formulated must fail. But counsel went on to submit that his Honour should have told the jury that the failure by the prosecution to call those persons as witnesses might give rise to the inference that at least some of them would not have given evidence that was favourable to the prosecution. It is apparent that the submission was based on the principle in Jones v. Dunkel[25].
[25](1959) 101 C.L.R. 298.

I mention for completeness that no exception was taken by the applicant at the trial about his Honour’s alleged failure to give such a direction, but nothing turns on this since he was not represented at the trial. I also note that the applicant did not call any of these persons as witnesses other than one Miethke to whom I will refer again later. His Honour did, however, remind the jury of the police evidence concerning their attempt to locate some of the persons who took part in the challenged conversations. Their evidence was that, although they tried to contact some of those persons, they were unable to do so. Apparently, lack of proper resources meant that they could not carry out a full investigation into their whereabouts and activities. In that context, his Honour commented to the jury that, although the failure by the prosecution to call those persons raised the question of the thoroughness of the police investigation, if the jury were worried about the matter, they should ask themselves how the evidence of those witnesses would impinge upon the case. His Honour then reminded them again that they were required to decide the case (only) on the evidence before them.

It has been recognised that the application of the principle in Jones v. Dunkel in criminal trials must be undertaken with caution and that it is subject to a number of qualifications, particularly if it is sought to be invoked against the interests of the accused[26]. In the present case it is the applicant who seeks to apply the principle as against the Crown. But as the President and Ormiston, J.A. explained in Glennon[27] even in that situation, the Jones v. Dunkel principle cannot be applied without qualification. Their Honours said:

“To apply it with impunity against the Crown may unfairly impinge upon the prosecutor’s solitary, but undoubted, discretion (explained in Apostilides v. R.[28]) not to call a witness whom he or she believes to be unreliable or not required for the proper and fair presentation of the Crown case. The exercise of this discretion is not lightly to be questioned by the trial judge but it must, of course, be exercised in good faith against the background of the Crown’s over-riding obligation to call all witnesses who are available and able to give reliable and relevant evidence as to the facts in issue, whether that evidence is favourable or unfavourable to the accused person. Failure to abide by the obligation may result in a miscarriage of justice.”

[26]R. v. M.C.G. [2001] VSCA 17 at [58, 59] per the President and Ormiston, J.A.; RPS v. R. (2000) 199 C.L.R. 620 at 633 per Gaudron, A-CJ, Gummow, Kirby and Hayne, JJ.; Wright v. Morton, unreported, 26 June 1996 at 26 per Batt, J.

[27]At [58].

[28](1984) 154 C.L.R. 563.

In my view, however, even if this qualification were to be put to one side, there is no basis for claiming that his Honour was required to give the direction contended for by Mr. Dealehr. First, no basis was put forward by him for supposing that the Crown was required to call these persons as witnesses in order fairly to present its case. It was not suggested that they were in the Crown camp or that their evidence would have assisted the prosecution. Furthermore, there was no unexplained failure by the Crown to call these persons and in any event, given that they were accomplices, it would not have been expected that they would be called by the Crown. Further, it is clear that their evidence was not “designedly withheld”[29]. Thus, the prosecution’s failure to call these persons as witnesses had no probative significance and could not assist in the drawing in favour of the applicant the inference contended for by Mr. Dealehr.[30]
[29]Kidman v. Corstorphan [1999] VSCA 28 at [26] per Tadgell, J.A.
[30]See Schellenberg v. Tunnel Holdings Pty. Ltd. (2000) 200 C.L.R. 121 at 142-143 per Gleeson, C.J. and McHugh, J.

It follows that, in my opinion, there is no basis for claiming that his Honour was required to tell the jury that failure by the Crown to call the persons in question might give rise to the inference that at least some of them would not have given evidence that was favourable to the prosecution. His Honour made no relevant error by not so directing the jury. What he did say to them about the matter (as I have already outlined), however, was favourable to the applicant.

Hence, in my view, this ground also fails.

Ground (vii)(a) - misdirection in relation to the evidence of Miethke

It was alleged under cover of this ground that his Honour misdirected the jury when he told them that the evidence of the applicant's witness Miethke did not help or hinder either side and that it was "perhaps beside the point ...”. As I have already mentioned, the only person who took part in the challenged conversations and who was called to give evidence, was Miethke. He was called by the applicant. On their face, the telephone conversations between the applicant and Miethke seemed to relate to transactions involving the sale of four green motor cars. Miethke said in his evidence that these conversations were limited to that transaction but the Crown case was that the word “green” was used as a code for marijuana and that this was the subject matter of their conversations. A similar case was put by the Crown in relation to the word “car” or “cars”.

In his charge, his Honour reminded the jury of this evidence and then, as Mr Dealehr accepted, his Honour summarised what the applicant and prosecutor said to the jury about it. His Honour then said that there was "no relationship between Miethke and [the applicant] about heroin but, of course, his evidence doesn't help or hinder either side, it is perhaps beside the point ...". Mr Dealehr's complaint was that his Honour erred in telling the jury that Miethke's evidence did not help the applicant. In my view, however, no such error was made by the trial judge. It was part of the Crown case that the applicant and Miethke were trading in drugs although not necessarily in heroin. Thus, even if the jury accepted Miethke's evidence, that would not have assisted the applicant in relation to the Crown case that he trafficked in heroin. Moreover, his Honour's above comment must be viewed in the context of the direction which he gave immediately following it, namely, that, if they took the view that a conversation related to trafficking, they had to be satisfied what product was being trafficked – heroin, marijuana "or some other thing". The question that they had to decide, his Honour said, was:

"Has the prosecution proved beyond reasonable doubt that [the applicant] was trafficking in heroin and not some other substance or not some other commodity? It would be wrong for you to say, 'Well, he is trafficking in marijuana, therefore in for a penny in for a pound'. By that I mean it would be wrong to think that just because he is trafficking in cannabis [it could be inferred] from that sole fact that he is the type to be trafficking in heroin. That would be wrong, that would mean you are not acting according to the law nor on the evidence. I stress you must act according to the law and the evidence."

Thus, in my view, there was no misdirection by his Honour as contended for by Mr Dealehr. His Honour's comment that there was no relationship between Miethke and the applicant concerning heroin was obviously favourable to the applicant. Similarly, the comment that Miethke's evidence did not harm or hinder either side and was, in effect, beside the point, also did not disadvantage the applicant.

In my opinion, therefore, ground (vii)(a) must fail.

Ground (v) - misdirection as to the applicant's intention

This ground, as formulated, asserts that his Honour "misdirected" the jury by “commenting” during his charge that the applicant's explanation for engaging in the transaction of 7 September 1994, namely, that he did so in order to destroy Carmody's heroin business as earlier described, could be disregarded by them because Carmody "believed" that there was in existence an ongoing business of trafficking in heroin. Before us, however, Mr Dealehr accepted, rightly, I think, that what his Honour said in this regard was a comment and not a direction, but he did submit that his Honour erred in telling the jury that they could take into account Carmody’s "belief" in determining whether the applicant engaged in the ongoing business of heroin trafficking. It was submitted that Carmody's belief was not relevant to this issue and, therefore, his Honour should not have said what he did. Mr. Dealehr did not explain, however, what was to follow if we concluded that his Honour erred by making this comment. I say this because it is clear that the jury must have understood from his Honour's directions that they were free to disregard any comment that he might make in relation to the evidence. It seems to me that, in all the circumstances, even if the comment that his Honour made was erroneous as is contended for by Mr Dealehr, it did not result in a miscarriage of justice. Be that as it may, however, in my opinion, his Honour’s comment did not constitute a relevant error on his part.

What his Honour said on this issue must be seen in its proper context. His Honour reminded the jury that the Crown case was that the applicant engaged with Carmody in the continuous offence of trafficking in heroin. His Honour also reminded them of the applicant's defence to which I have already referred. It was after that that his Honour made what he said was a “comment”, namely, whether or not the applicant was seen to sabotage Carmody's drug business, there was a "fair amount of evidence to suggest that Carmody believed" that he and the applicant had an ongoing business, that there was evidence that the applicant was promoting it and that each earned an income from it. His Honour then referred to various pieces of evidence concerning the involvement of the applicant and Carmody in the trafficking of the drug and concluded as follows:

"Now, whether that amounts to carrying on an ongoing business of trafficking in heroin, even if you do accept what [the applicant] says, is a matter for you."

Thus, the jury were correctly told that the ultimate question whether there was an ongoing business of trafficking in heroin in which the applicant participated was a matter for them even if they accepted the applicant’s explanation of the 7 September 1994 transaction. His Honour did not tell the jury, as Mr. Dealehr contended, that they could disregard the applicant’s defence merely because of Carmody’s “belief”. It is clear that, when his Honour used that term he was speaking of Carmody’s intention to conduct an ongoing business of heroin trafficking through the applicant. Given that it was part of the Crown case that the applicant participated in that business with Carmody, it was appropriate for it to rely on the evidence which demonstrated that Carmody had the requisite commercial intent and for his Honour to make the comment he did in relation to it.

In my opinion, therefore, this ground cannot succeed.

Grounds (vii)(b), (viii) and (ix)

For completeness, I mention that these grounds were abandoned by Mr. Dealehr.

Application for leave to appeal against sentence
Ground (iii) - lack of parity

I now turn to consider the applicant’s application for leave to appeal against sentence. Mr. Dealehr abandoned grounds (i), (ii) and (vii). (There is no ground that is numbered (vi).) Grounds (iii) and (iv) were argued together. They raise the issue of parity and the claim that his Honour erred in concluding that Stein had pleaded guilty to the charge of trafficking. Turning first to the last mentioned claim, it seems clear enough that, although his Honour said in his sentencing remarks that he was told by counsel that Stein had pleaded guilty to this charge, this was not the case. In fact, Stein had pleaded not guilty in the Magistrates’ Court to one count of trafficking 14 grams of heroin on 7 September 1994. He was convicted and sentenced (as a user) to a Community Based Order to perform 100 hours of unpaid community work over a period of six months.

As to lack of parity, Mr. Dealehr argued that the disparity between the sentences imposed on the applicant and those imposed on his co-offenders, Mrs. Carmody and Stein, engendered in the applicant a justified sense of grievance and that, therefore, this Court should re-sentence him (and impose a lower sentence). Moreover, it was said by Mr. Dealehr, his Honour’s error in assuming that Stein had pleaded guilty vitiated his sentencing discretion inasmuch as it caused him to proceed on a false premise when considering the relativity between the applicant’s sentence and that imposed on Stein.

I have already mentioned the offence with which Stein was charged and the sentence that was imposed on him. It will be recalled that Mrs. Carmody pleaded guilty to two counts of being knowingly concerned in the importation of heroin and one count of trafficking in heroin in respect of which she was sentenced, after her successful appeal, to a total effective sentence of three years’ imprisonment with a minimum of 18 months. Mr. Dealehr argued that the drug offence of which Stein was convicted was at the same or similar level of seriousness as the applicant’s offending conduct. Mrs. Carmody, he said, was involved in offences of a much more serious nature, yet the sentence imposed on her was significantly below that imposed on the applicant. Thus, it was said, the applicant’s sentence was, in the circumstances, unduly harsh engendering in him a justified sense of grievance. Counsel relied on R. v. Lowe[31]; Postiglione v. R.[32]; R. v. Tinti[33]. He also referred to R. v. Spaull & Rush[34].
[31](1984) 154 C.L.R. 606 at 610.
[32](1997) 189 C.L.R. 295 at 301- 8, 335.
[33][1999] VSCA 20.
[34][1999] VSCA 18.

It is established that, where the difference between the sentences imposed on co-offenders for the same or similar offences is manifestly excessive, the appellate court might intervene on the ground that the disparity engenders a justifiable sense of grievance or gives the appearance that justice has not been done – Postiglione; Lowe; R. v. O’Brien& Gloster[35]; R. v. Bulfin[36]. The test for determining whether the disparity engenders a justifiable sense of grievance in the applicant or creates an appearance of injustice to the bystander, is an objective one – R. v. Taudevin[37]. It is equally well established, however, that “where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for”[38].
[35][1997] 2 V.R. 714 at 722 per Charles, J.A.
[36][1998] 4 V.R. 114 at 138-140 per Charles, J.A.
[37][1996] 2 V.R. 402 at 404 per Callaway, J.A.
[38]Lowe at 623 per Dawson, J.; R. v. O’Brien & Gloster at 722 per Charles, J.A.

At the hearing of the plea for leniency, the applicant was represented by senior counsel who raised the subject of parity with his Honour arguing that the level of offending by the applicant was materially below that of the Carmodys. During the hearing his Honour expressed the tentative view that the applicant’s offending conduct did not constitute “major trafficking” although it did call for a significant gaol sentence. It is to be noted that the applicant’s counsel did not seek to argue that a significant gaol sentence was not an appropriate sentencing disposition. The situation in relation to Stein was also raised during the hearing in the course of which the applicant’s counsel informed his Honour that Stein had contested the trafficking charge brought against him, was convicted and sentenced as previously mentioned. In his sentencing remarks his Honour stated that he had given consideration to the issue of parity as between the applicant and Mrs. Carmody and Stein. His Honour noted that the offence of being knowingly concerned in the importation of heroin was a much more serious charge than the trafficking by the applicant. As I have already mentioned, his Honour incorrectly assumed that Stein had pleaded guilty in relation to his involvement in the 14 gram trafficking on 7 September 1994. But it is apparent from the sentencing remarks that his Honour considered that the three offenders were being sentenced for different offences, that the nature of their offending was not the same and that there was a material difference in their respective personal circumstances.

In my view, his Honour correctly drew these distinctions between the three offenders and reflected them in the different sentences which he imposed. Stein was sentenced in the Magistrates’ Court on the basis that he was an addict or at least a heavy user of heroin in respect of a one-off heroin trafficking transaction, in contrast to the applicant who was convicted of a Giretti count of trafficking in respect of a period of some ten weeks. The maximum sentence that could have been imposed on him in the lower court was three years’ imprisonment.[39] In my view, nothing turns on his Honour’s error in relation to Stein’s plea. Assuming that Stein had pleaded guilty, it is unlikely that, in the circumstances, the magistrate would have imposed on him a sentence that was significantly less than the one that was in fact imposed. It is true that, in the case of Mrs. Carmody, she pleaded guilty to offences that were more serious than the one with which the applicant was charged, but the nature of her offending and her personal circumstances were materially different from those applicable to the applicant. Thus, it is clear that, in relation to the importing count, Mrs. Carmody played a subsidiary role to that of her husband and her plea of guilty and her promise of assistance and co-operation with the authorities warranted some sentencing discount notwithstanding that her statement in relation to the applicant seemed to have been of little evidentiary value. Moreover, the Court of Appeal extended mercy to her on the basis of the material which showed that the health of her four year old son suffered drastically as a consequence of his being deprived of his mother’s care following her incarceration[40]. None of these considerations apply to the applicant. I note, for completeness, that it has not been suggested by counsel that the sentence imposed on the applicant is manifestly excessive.
[39]Section 113 of the Sentencing Act 1991 and Schedule 4 of the Magistrates’ Court Act 1989.
[40]R. v. Carmody, Court of Appeal (Winneke, P., Tadgell and Callaway, JJ.A.), 18 March 1998 at 5‑6 per Tadgell, J.A.

Thus, in my view, his Honour did not commit the error contended for by Mr. Dealehr under cover of these grounds. It follows that they must fail.

Ground (v) – his Honour’s failure to take into account delay

Under cover of this ground it was argued on the applicant’s behalf that his Honour failed to take into account at all or sufficiently in his sentencing consideration the considerable period of delay between the applicant’s arrest in January 1995 and his trial. Consequently, it was asserted, his Honour’s sentencing discretion miscarried.

In my view, however, the argument is without foundation. First, the delay was not raised during the hearing of the plea in mitigation. A number of things follow from this. It is too late to raise it now since no exceptional circumstances have been shown why the point should be raised for the first time on appeal. Next, it may be fairly assumed that the applicant’s counsel did not regard delay as being relevant to the appropriate sentencing disposition. In any event, the period and the circumstances of delay in this case do not amount to such a mitigating factor that failure by his Honour to have regard to it meant that his sentencing discretion was vitiated. A large part of the delay – effectively from 22 November 1995 to 30 July 1997 – was brought about by adjournments which were sought by Carmody and the applicant in order to enable Carmody to pursue proceedings to challenge the issue of the warrants. Any success in that regard would have benefited the applicant. There were further delays, until well into 1998, because of the applicant’s endeavour to obtain legal aid funding for his trial. Moreover, the period of delay between the time the applicant was charged and the commencement of his trial was in the order of three years and nine months.

Thus, the delay here was neither inordinate nor unexplained and the applicant was not, during that period, awaiting sentence. At all relevant times he evinced the intention to contest the charge. In the circumstances, the delay did not amount to a mitigating factor as that concept was explained by Tadgell, J.A. in R. v. Miceli[41].
[41][1998] 4 V.R. 588 at 591. See also R. v. Schwabegger [1998] 4 V.R. 649 at 655-6 per Kenny, J.A. and at 659-660 per Vincent, A.J.A. and R. v. Blanco (1999) 106 A.Crim.R. 303 at 306 per Wood, C.J. at CL.

For these reasons, I am of the view that this ground must also fail.

Conclusion

In the circumstances, therefore, I am of the view that both applications should be dismissed.

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[2001] VSCA 63

16 May 2001