Ryan v The Queen
[2013] VSCA 184
•23 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0224 |
| ANDREW RYAN |
| v |
| THE QUEEN |
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| JUDGES | NETTLE and COGHLAN JJA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 July 2013 |
| DATE OF JUDGMENT | 23 July 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 184 |
| JUDGMENT APPEALED FROM | [2009] VSC 631 (King J) |
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CRIMINAL LAW – Sentencing – Trafficking in a large commercial quantity of a drug of dependence – Parity – Perceived level of involvement of prisoner compared to other accused – Sentence passed very shortly after co-offender sentenced – Sentenced as serious drug offender and co-offender not so sentenced – Offending occurred whilst prisoner sentenced to period of home detention – Serious aggravating factor – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Melasecca, Kelly & Zayler |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an application for leave to appeal against a total effective sentence of 10 years’ imprisonment, with a non-parole period of seven years, imposed on the applicant on pleading guilty to one count of trafficking in a large commercial quantity of a drug of dependence (methyl amphetamine); one count of trafficking in a commercial quantity of a drug of dependence (3,4-methylenedioxy-N-methyl amphetamine (‘MDMA’)); and one count of knowingly dealing with the proceeds of crime. The maximum penalty for each offence, the individual sentences and orders for cumulation were as follows:
Count
Offence
Max Penalty
Sentence
Cumulation
1
Trafficking in a large commercial quantity of Methyl amphetamine
Life imp.
9 years’ imp.
Base sentence
2
Trafficking in a commercial quantity of MDMA
25 years’ imp.
2 years’ imp.
1 year.
3
Dealing with proceeds of crime knowingly.
15 years’ imp.
9 months’ imp.
Nil.
TES
10 years’ imp.
Non-parole period
7 years.
Pre-sentence detention
925 days.
6AAA Declaration: Count 1: 12 years; Count 2: 2 years and 9 months; Count 3: 12 months.
Other orders:
Sentenced as a serious drug offender on Count 2
Disposal order
Forensic sample order
Forfeiture order.
The facts
The facts were found by the sentencing judge to be that:
1) Throughout the period October 2006 to June 2007, the applicant purchased large amounts of methyl amphetamine from a network of individuals, known as ‘The Company’, which was organised by Tony Mokbel (Mr ‘A’).
2) In the early months of 2006, Mr ‘A’ was on trial in the Supreme Court for drug related offences. At the end of March 2006, he absconded from trial and fled to Greece. Thereafter, he continued to control the activities of The Company through intermediaries.
3) Many persons were involved in The Company’s activities but the members of The Company who principally dealt with the applicant were Joseph Mansour, Batholomew Rizzo and Christopher Ferraro. They were the principal organizers of The Company in Australia and acted on instructions of Mr ‘A’ conveyed to them through telecommunications and information supplied by other trusted confidantes.
4) The applicant was a substantial customer of The Company. In the latter part of the offending period, he spoke by telephone to Mr ‘A’ in the presence of Mansour on four occasions. Mansour and Mr ‘A’ made telephone contact and Mansour handed the applicant the telephone to speak to Mr ‘A’. Although the applicant did not know that it was Mr ‘A’, he knew that he was speaking to Mansour's boss..
5) Rizzo kept a book of account relating to ‘The Company's’ drugs. It was called the ‘Raymond Weil’ and recorded all of the methyl amphetamine coming into The Company after 5 July 2006 until arrests were made on 5 June 2007. It showed that, over that period, in excess of 100 pounds of methyl amphetamine was received into The Company and at least 90 pounds of it were received between July 2006 and June 2007.
6) The Company worked in this way: when the manufacturing process was complete, The Company purchased the methyl amphetamine from Mr ‘A’. Mr ‘A’ charged The Company $40,000 to $47,500 per pound for it and, from that moment on, The Company owed Mr ‘A’ for the methyl amphetamine. Members of The Company, like Mansour and Rizzo, then cut and on-sold the methyl amphetamine to wholesale customers, including the applicant, for their own profit. As a result, The Company incurred a bill to Mr ‘A’ and amounts were then deducted from that bill in respect of disbursements made at the direction of Mr ‘A’ to his associates and his interests. Generally speaking, however, the bill did not generally record the on‑sale of drugs by members of The Company to its customers. It was a standing account of the financial position as between The Company and Mr ‘A’.
7) Over the period of the applicant’s offending, he purchased a total of approximately 21 pounds (9.525 kilograms) of methyl amphetamine from The Company. At that time, a large commercial quantity of Methyl amphetamine was 2.5 kilos of mixed substance.
8) In the period between October 2006 and April 2007, he purchased approximately 15 pounds of it and, in May 2007, he purchased a further six pounds of it, for which he paid $45,000 per pound. His point of contact at The Company for the purposes of those dealings was Mansour.
9) Mansour generally arranged for Ferraro to drop off the drugs at the applicant’s home, or at a gym where the applicant worked, and Mansour collected the money from the applicant either at the applicant’s home or at the gym. The applicant received the drugs on credit and only paid for them after he had cut and on-sold them. Upon taking delivery, he prepared them for sale, which included cutting them so that he could make his own profit, and sealing them in a cryovac machine or packing them in Glad resealable plastic bags. Then he, on-sold them, at a profit, through his network of customers.
10) In May of 2007, the police obtained telephone intercept warrants on the mobile phones used by members of The Company and intercepted a number of telecommunications between those members and the applicant. The applicant was referred to in those conversations as ‘Ross’.
11) Mansour's largest major delivery to the applicant, in May 2007, was five pounds. It was made up of an initial three pounds followed by a further two pounds. There was an entry made by Rizzo in the Raymond Weil referring to nine pounds of speed coming into The Company: ‘Add stock Jack (5) and JNB(4)’. ‘Jack’ was a reference to the five pounds of methyl amphetamine delivered to the applicant in May 2007.
12) Mansour told Rizzo that he had given five pounds to Jack, who was a close friend of Mr ‘A’. Mansour did that because he did not want Rizzo to dilute the drugs. Mansour later told police that he believed that, at the time of the applicant’s arrest in June 2007, the applicant owed $225,000 to The Company.
13) Over the course of the weekend of 19 and 20 May 2007, there were other telephone calls involving Mansour, Rizzo and Ferraro in which they discussed the delivery to the applicant of a further pound and on 29 May, 2007 Ferraro told Mansour that the methyl amphetamine had been delivered to the applicant the previous Friday.
14) From time to time, difficulties arose with respect to the quality of The Company's methyl amphetamine. This first occurred in 2006. Despite those problems, The Company was still able to sell the product. One of the reasons it could do so was because the applicant was able to help improve the quality. He told Mansour that he was able to remove the impurities to such an extent to enable him to continue to on‑sell to his customers.
15) Then, the quality of the methyl amphetamine deteriorated significantly further in May 2007. The Company received complaints from customers and, in at least one case, was forced to accept the return of some drugs in mid May.
16) With Mansour's encouragement, Mr ‘A’ and The Company turned to the applicant for advice and assistance but the problems were such that the applicant was unable to assist.
17) Mark Matthews was in the habit of purchasing methyl amphetamine from the applicant on a regular and continuous basis in minimum one ounce lots. That occurred, virtually daily, over the relevant period. After the applicant moved to Mitcham, the quantities increased gradually to four or five ounces daily. The applicant charged between $2,800 and $3,200 an ounce. Matthews used to collect the drugs from the applicant from the applicant’s home or from the gym where the applicant was working at Doncaster, or at Monash University.
18) In the month leading up to the applicant’s arrest, Mark Matthews, complained to the applicant about the quality of the methyl amphetamine which the applicant were selling him, and the fact that it was making his customers physically ill. He also returned some six ounces of defective product to the applicant.
19) Samples sold by Mansour and Rizzo to an undercover operative on three separate occasions in May 2007 showed that the six pounds delivered to the applicant in May of 2007 were of extremely low or poor quality and consequently of low commercial value.
20) The applicant told Matthews that he would fix the problem, and on two occasions, Matthews observed the applicant attempting to do so. It was also apparent from materials found in the applicant’s premises that he had attempted to fix the problem. When the applicant had completed the rectification process, he re‑packaged the speed in cryovac and bagged it. But the process did not fix the problem and the customers continued to complain. At the time of the applicant’s arrest, Matthews owed the applicant some $35,000.
21) It also emerged in the intercepted telephone calls that, in the last days of May 2007, the applicant was working closely with Mansour and Mr ‘A’ in an attempt to rectify the problem. There were a series of telephone calls on 28 May about that, two of which involve Mansour and Mr ‘A’.
22) On 30 May, 2007 Mr ‘A’ told the applicant that he would get Mansour to give the applicant some finished methyl amphetamine in the coming week to check its purity. That remark related to a new batch which was anticipated to be coming to The Company.
23) On 31 May, 2007, surveillance police observed Mansour attending at the applicant’s address and on 1 June 2007 The Company took possession of some newly manufactured product from George Elias. There was a series of telephone calls on 2 June, 2007 involving Mansour, Rizzo and the applicant, in which the delivery of the new sample was organised and the sample was delivered.
24) In the telephone calls of 28 and 30 May 2007 between Mr ‘A’ and the applicant, the applicant expressed his willingness to become involved in the process of manufacturing methyl amphetamine for The Company. He said that he could manufacture or supply methylamine, a precursor chemical used in the manufacture of methyl amphetamine, but he added that he would only be in a position to do that once he had completed the period of home detention which he was then serving. The applicant, however, was arrested a week after those calls and his intention of supplying chemicals to The Company was not realised.
25) During the relevant period, the applicant also sold several thousand MDMA pills to his network of customers. The police investigation identified at least three persons as MDMA customers: Mark Matthews, William Byrne and Andrew Demetriou. All knew the applicant by the name Roscoe. The applicant sold MDMA tablets, on multiple occasions, to Matthews from October 2006 to June of 2007, usually in hundred tablet lots, and to Byrne from December 2006 to June 2007, usually in 50 or 100 tablet lots and, on one occasion in late 2006, he sold 50 tablets to Andrew Demetriou.
26) While the applicant was living at Mitcham, he was also able to satisfy a few of the larger orders, including an order of up to a thousand pills for Byrne. The exact total of MDMA pills sold during the offending period could not be ascertained with certainty. It was accepted all round, however, that the total was in the vicinity of 3,000 to 4,000 MDMA tablets; a figure which made allowance for the fact that, on analysis of the pills which the police received from Byrne's residence, 36 of those pills contained MDMA while another 10 pills did not but rather small quantities of methyl amphetamine.
27) The applicant charged Mark Matthews between $6 and $8 per MDMA pill, Byrne between $10 and $14 a pill and Demetriou $1,100 for the 50 pills, which is to say, $22 a pill.
28) When the applicant was arrested on 5 June 2007, police executed a search warrant at his house at Mitcham and found a large number of drug related documents, substances and paraphernalia. That included a computer and a flash drive containing a spreadsheet which listed over 60 individual names, with residential addresses and car registration numbers. The document included the points against particular names and assisted police in identifying Mark Matthews and Andrew Demetriou as customers. It also listed a large number of names with corresponding mobile telephone numbers.
29) Police also seized a number of glass jars. Two of the jars were found to contain methyl amphetamine residue or indications of methyl amphetamine. A portable oven was found and a swab, taken from inside, revealed methyl amphetamine. There were substantial quantities of powder commonly used to cut methyl amphetamine, including cardboard boxes labelled ‘caffeine’ which contained white powder, and a 25 kilogram wooden tub labelled Mannitol. There was as well email correspondence located on the applicant’s computer which indicated that, on 18 May, 2007 the applicant purchased 25 kilograms of Mannitol from a company in the United States through his company, Cronus Solutions.
30) Other trafficking equipment found on site included three sets of electronic scales, drug testing kits, vacuum food sealer, numerous boxes of small, medium and large plastic bags, and 20 handwritten pages containing instructions and formulae on how to manufacture methyl amphetamine and MDMA, plus $12,650 in cash, the subject of Count 3, and police seized nine mobile telephones, several of which were registered in false names and addresses.
31) The applicant had a storage facility at Kennards, in Vermont. He told Mansour that he kept all of his stock there. But within weeks of the applicant being arrested in June 2007, the contents were cleared out by an unidentified person. Consequently, when the police searched the facility several weeks after the arrest, it was found to be empty.
32) Following his arrest, the applicant participated in a record of interview but only to the extent of making ‘no comment’.
Grounds of appeal
Originally, there were two grounds of appeal. The first was that the sentencing judge was alleged to have made a number of errors of fact. That ground was abandoned at the outset of oral argument. The second ground is that the individual sentence imposed on Count 1 is alleged to be manifestly disproportionate to the individual sentence of seven years’ imprisonment imposed on the applicant’s co-offender George Elias on a count of trafficking in a large commercial quantity of methyl amphetamine and the sentence of eight years’ imprisonment imposed on the applicant’s co-offender Chafic Issa for a similar offence. It is also contended that there is exceptionable disparity as between the total effective sentence imposed on the applicant and the total effective sentences imposed on Elias and Issa.
Ground 2 – Parity
The thrust of the complaint made under Ground 2 is that the applicant’s co-offender George Elias stood above the applicant in the hierarchy of offending, and had a worse criminal history than the applicant, and yet was sentenced to seven years’ imprisonment on the count of trafficking in a large commercial quantity of methyl amphetamine compared to the nine years’ imprisonment to which the applicant was sentenced for that offence. On that basis, it was submitted, the judge had so much failed to achieve appropriate relativity as between the two offenders as to offend the parity principle.
As the Crown contended, however, in fact there were several good reasons for the imposition of a more stringent sentence on the applicant than on Elias. First, for a considerable part of the relevant period, the extent of Elias’ involvement was more limited and at a lower level than the extent and level of the applicant’s offending. The judge who sentenced Elias found that his participation in the drug trafficking did not begin until October 2006 and that it varied over time. It was not possible to say that he did anything more serious before 2 February 2007 than act as a driver and, although his role increased in importance after that point to one of playing an important part in the ‘gassing’ component of the manufacture of the methyl amphetamine and distribution of that drug to Mansour and Rizzo, ‘it was not possible to conclude to the relevant standard exactly what his role was until the phone intercepts begin [in May 2007]’. That state of affairs stood in contrast to the applicant’s position throughout the period from October 2006 to June 2007, as proprietor of his own wholesale drug trafficking business; one of The Company’s major customers; and, as such, the purchaser of large amounts of methyl amphetamine and MDMA from The Company for on-sale to his own customers with a view to profit. As defence counsel properly conceded on the plea:
Now, I want to make it clear at the outset that my client was obviously involved in a very, very, very considerable drug trafficking activity between October and June [2007]. He makes no bones about that.[1]
[1]T.27.26-29.
Secondly, although both men had previous criminal convictions, Elias’ prior criminal convictions were in some respects less serious. They were limited to a conviction in the Oakleigh Magistrates’ Court in November 1987 on eight counts of trafficking in cannabis and one count of using cannabis, for which he received a suspended sentence of one month’s imprisonment and a fine a conviction on 8 March 1991 in the Magistrates’ Court at Oakleigh on one count of trafficking cannabis, one count of possession of cannabis and one count of using cannabis, for which he was sentenced on appeal to a community based order on special conditions that he submit to drug testing and psychiatric treatment; and a conviction on 1 June 1998 in the Magistrates’ Court at Dandenong on one count of cultivating narcotic plant, namely, cannabis, one count of possession of cannabis and one count of using cannabis, and a count of failing to store a category A or B longarm firearm correctly, for all of which he was sentenced to be released on an intensive correction order.
In contrast, the applicant had prior convictions entered on 23 September 2003 in the Magistrates’ Court at Ringwood on charges of attempted trafficking of a drug of dependence, namely, amphetamine; trafficking in a drug of dependence, namely, Cannabis L; cultivating a narcotic plant, namely, Cannabis L; possessing a drug of dependence, namely amphetamine; possessing a drug of dependence, namely, Cannabis L; using a drug of dependence, namely, amphetamine; using a drug of dependence, namely Cannabis L; and possessing property being proceeds of crime (2 charges), for which he was sentenced to be released on a community based order for a period of six months on all charges with the special conditions that he perform 60 hours unpaid community work, submit for testing as directed and undergo assessment and treatment for alcohol and drug addiction. Then, on 15 August 2006, he was convicted before the Magistrates’ Court at Ringwood of trafficking in a drug of dependence, namely, cocaine; possessing a drug of dependence, namely, methyl amphetamine; possessing property being the proceeds of crime; two charges; driving a motor vehicle while disqualified; two charges of stating a false name; failing to obey the lawful direction of a member of the Police Force; driving a motor vehicle in a careless manner and driving an unregistered motor vehicle, for which he was sentenced to be imprisoned for nine months on the first six counts to be served by way of home detention and fined an aggregate sum of $1,000 on Charges 7 through to 10.
Thirdly, prior to being so sentenced in August 2006, the applicant arranged for privately funded psychological treatment and testing and for the results to be presented to the Magistrates’ Court. The Magistrates’ Court was thus persuaded to sentence the applicant to home detention on terms which allowed him to be away from home to work at the gymnasium where he was employed and to attend university where he was then studying engineering. As it turned out, he used the opportunity to be at the gym to continue to meet Mansour and Ferraro for the purposes of drug trafficking and he used the opportunity to attend university to continue to traffick in drugs of dependence at the university. Hence, in contrast to Elias, who had not been convicted of any offence since 1998, the applicant was still serving a period of home detention in respect of his 2006 convictions when he committed the subject offending. As counsel for the applicant properly conceded, that was a serious aggravating factor of the offending which did not apply to Elias.
Fourthly, because of the nature of the applicant’s previous offending, the applicant was sentenced on Count 2 as a serious drug offender and thus upon the basis that community protection was the principal sentencing consideration. Elias was not so sentenced.
Fifthly, whereas the judge who sentenced Elias found that he had very good prospects of rehabilitation, it is apparent from the sentencing remarks in this case that the judge considered that the applicant’s prospects of rehabilitation were distinctly problematical. As her Honour said, with apparent reference to the fact that the applicant was sentenced to home detention and yet continued to offend:
I find that specific deterrence, is also most significant. You have undoubtedly claimed on past occasions to have learned your lesson, demonstrated your drug free status and relied upon you naivety and gullibility, to minimise the consequences of your illegal drug trafficking activity. There are only a limited number of times, that you can escape the consequences, using those excuses.
Counsel for the applicant advanced a further submission that the sentence of nine years’ imprisonment imposed on the applicant on the count of trafficking in a large commercial quantity of methyl amphetamine was manifestly excessive compared to the sentence of eight years’ imprisonment imposed on the applicant’s co-accused, Chafic Issa. Counsel contended that Issa stood higher in the hierarchy of offending, was older than the applicant and found to have been involved in the movement of 73.5 pounds of methyl amphetamine compared to the 21 pounds for which the applicant stood to be sentenced.
At first sight, there appears to be something in that submission. On closer examination, however, it will be seen that there were also several factors which implied that the applicant was deserving of a greater individual sentence than Issa. Issa was not within the same hierarchy as the applicant and he did not operate at the same level as the applicant. Although he was said to be one of Mr ‘A’s trusted confidantes, he was not as close to Mr ‘A’ as Elias and his role was limited to acting as courier of large amounts of drugs cash in accordance with Mr ‘A’s instructions. He did not participate in decision making but only in carrying out decisions made by Mr ‘A’. It was not suggested that he received any great financial rewards for his efforts even though he expected to be compensated financially. In contrast, the applicant made his own decisions as principal of his own wholesale drug trafficking operation, and with a view to substantial profits, although the Crown was unable to point to evidence of how much if any he received.
Issa was also culturally, educationally and financially disadvantaged relative to the applicant, had no prior criminal convictions, was reputed to be a good, decent, hardworking person who had not previously been in trouble and had a strong family background and record of providing for his family. As the judge said, therefore, in addition to his early plea of guilty, she took into account in his favour his lack of prior convictions and his family situation. In contrast, the applicant had a series of recent relevant criminal convictions and of course had offended while still completing a period of home detention for drug offences.
Arguably, there was more overall equivalence as between the two offenders than comparison of their respective sentences tends to imply. But, as against that, the judge sentenced the applicant very shortly after sentencing Issa[2] and, therefore, presumably with the sentence imposed on Issa still very much in mind. Indeed, when sentencing Issa, the judge expressly referred in her sentencing remarks to Issa’s role relative the role played by the applicant.[3] Hence, as Young CJ observed in R v King:[4]
When two or more co-accused, however, are sentenced by the same judge, if not at the same time very close together, for the same offence, an applicant who contends that the sentence which he has received is disproportionate to the sentence received by any of his co-accused faces a difficult task unless he can show that the trial Judge plainly did not have in mind the desirability of maintaining some parity of sentence.
[2]Issa was sentenced on 24 November 2009 and the applicant was sentenced on 16 December 2009.
[3][2009] VSC 633, [5].
[4]Unreported, 4 June 1979, CCA; see also Fox and Frieberg, Sentencing, State and Federal Law in Victoria, 2nd Ed, [3.1005].
Evidently, the judge took a particularly dim view of the applicant offending while still serving a period of home detention. As can be seen from the transcript of discussion between defence counsel and the judge during the course of the plea, her Honour regarded it as a serious aggravating factor which necessitated a greater penalty than usual to satisfy the requirements of general and specific deterrence. While that might not be a sufficient differentiating factor in itself to warrant the difference between sentences of which the applicant now complains, it surely goes a long way to explaining it.
Perhaps, reasonable minds might differ as to the extent of the difference; particularly given the relatively tender age and consequently supposed naiveté and gullibility of the applicant compared to the more advanced years and experience of his co-offenders. At the same time, however, it needs to be borne in mind that, according to the evidence before the judge, the applicant was and is highly intelligent and relatively well educated and had prior convictions for repeated drug trafficking offences in respect of which he had been given one last chance of avoiding prison by being sentenced to home detention. As the sentencing judge discerned, in those circumstances claims for leniency on the basis of youth, gullibility and naiveté can hardly be pressed very far.
Again, there may be something in counsel’s submission that, given that Elias and Issa were sentenced not only for trafficking in large commercial quantities but also for perverting the course of justice – by assisting Mr ‘A’ to evade capture and maintaining his empire for him in his absence – the total effective sentences imposed on the applicant appears large compared to the total effective sentences imposed on those other two men. But, as counsel also properly conceded, such comparisons are of limited utility at the best of times and, in my view, of still less certain validity when comparisons are sought to be made between offenders drawn from different socio-economic milieus, who operated in different although intersecting environments, according to different motivations.
Possibly, there is as well something in counsel’s submission that, because Elias and Issa knew that they were dealing with Mr ‘A’, and the applicant did not, Elias and Issa’s offences of trafficking were to some extent more heinous than the applicant’s. But, if so, and as a matter of principle I have real doubts about the validity of that proposition, Elias and Issa were separately punished for perverting the course of justice; and so to treat their knowledge of the fact that they were dealing with Mr ‘A’ as in some way aggravating their offences of trafficking would be tantamount to double counting.[5]
[5]The Queen v De Simoni (1981) 147 CLR 383; R v Newman and Turnbull [1997] 1 VR 146, 150-152.
Finally, and just as importantly, the assessment of the relative nature and gravity of each of the co-offender’s transgressions and the assessment of each man’s relative moral culpability was a a particularly complex sentencing task. This court does not have the same degree of insight as the sentencing judge into the array of sentencing considerations which informed the task. Self-evidently, her Honour was at a distinct advantage in the formulation of the appropriate sentencing synthesis and we should be slow to ignore that advantage.
All things considered, I am not persuaded that the judge was in error in imposing a greater individual sentence on the applicant on the count of trafficking in a larger commercial quantity of methyl amphetamine than on Elias or Issa, or that comparison of their total effective sentences bespeaks exceptionable disparity. Even if it is a matter about which reasonable minds might differ, I consider that the differences to which I have referred were sufficient to warrant the judge differentiating between the applicant and Issa, still more between the applicant and Elias, in the manner her Honour decided.[6] Consequently, I am not persuaded
[6]R v Woolfe [2008] VSCA 284, [9] (Maxwell P); Teng v R (2009) 22 VR 706, 710 [17] (Maxwell P, Ashley JA, Lasry AJA).
that there is room here for any justifiable sense of grievance about the difference between the sentence imposed on the applicant and the sentences imposed on his co-offenders.[7]
[7]Cf Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 (Dawson J); Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
Conclusion
It follows that I would refuse leave to appeal.
COGHLAN JA:
I agree.
DIXON AJA:
I agree with Nettle JA for the reasons he gives that leave to appeal should be refused.
NETTLE JA:
The order of the Court is that the application for leave to appeal against sentence is refused.
It will be noted in the order, because it was not noted in the order of the judge below, that the applicant was sentenced as a serious drug offender on Count 2.
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