Symons (a pseudonym) v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0146
BAILEY SYMONS (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of certain names.

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	Kennedy JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 316
JUDGMENT APPEALED FROM:	[2023] VCC 1284 (Judge Higham)

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CRIMINAL LAW – Application for leave to appeal – Sentence – One charge of trafficking in drug of dependence together with other charges including firearms offences and charge of deal with property suspected of being proceeds of crime – Total effective sentence 80 days’ imprisonment combined with 33-month drug and alcohol treatment order – Whether sentence on charge of deal with property suspected of being proceeds of crime manifestly excessive – Whether proper regard to principles of proportionality and parsimony – Leave to appeal refused.

Sentencing Act 1991, pt 3 div 2 sub-div 1C; Criminal Procedure Act 2009, s 280(1).

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Counsel
Applicant:		Mr T Battersby
Respondent:		Ms K Hamill
Solicitors
Applicant:	Slink & Keating
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA:

Introduction and summary

On 14 July 2023, the applicant, Bailey Symons, pleaded guilty to four charges on the relevant indictment and two related summary charges.
Following a Drug and Alcohol Treatment Court determination hearing (‘plea hearing’) on 14 July 2023, the applicant was sentenced on 24 July 2023 in the Drug Court Division of the County Court as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence	15 years	25 months’ imprisonment (within DATO)	Drug and Alcohol Treatment Order (‘DATO’) base[2]
2	Possession of a drug of dependence	1 year	60 days’ imprisonment	Imprisonment base
3	Dishonestly receive stolen goods	15 years	6 months’ imprisonment (within DATO)	2 months cumulative on DATO
4	Prohibited person possess imitation firearm	10 years	5 months’ imprisonment (within DATO)	2 months cumulative on DATO
Related Summary Offences
9	Deal with property suspected of being the proceeds of crime	2 years	10 months’ imprisonment (within DATO)	4 months cumulative on DATO
19	Possess a prohibited weapon without exemption	2 years	50 days’ imprisonment	20 days cumulative
Total Effective Sentence:		80 days’ imprisonment combined with a 33-month DATO
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		80 days declared as applied to the sentence of imprisonment. An additional 463 days noted as applicable to the DATO
Section 6AAA Statement:		Total Effective Sentence 4 years Non Parole-Period 33 months
Other Relevant Orders: 1. Forfeiture order. 2. Destruction order.

[2]As explained below, pursuant to s 18ZE of the Sentencing Act 1991 an offender is not to serve the custodial part of a DATO except if it is activated. The DATO contained a treatment and supervision part, as well as a custodial part.

The applicant now seeks leave to appeal against sentence on the following proposed grounds:
Ground 1.The sentencing judge erred by imposing a manifestly excessive sentence on summary charge 9.
Ground 2.The sentencing judge erred by failing to have proper regard to principles of proportionality and parsimony.[3]
[3]Proposed ground 2 originally alleged error by reason that the sentencing judge failed to have proper regard to the parity principle. This complaint was abandoned at the hearing and leave was given to reformulate the proposed ground as extracted above on the basis of the oral submissions. The applicant did not ultimately seek to make further written submissions, but the respondent sought, and was granted, leave to file further written submissions dated 5 December 2023.
The applicant’s counsel[4] made oral submissions in support of proposed ground 2 (as reformulated). The respondent then provided further written submissions regarding proposed ground 2 on 5 December 2023.
[4]The applicant was described as being ‘at large’ and as the subject of an outstanding warrant to arrest. The Court was informed that he was also the subject of an application to cancel the DATO, and for sanctions. I have not treated these matters as relevant to this application.
For the reasons that follow, leave to appeal will be refused.

Circumstances of the offending

In January 2022, police launched an investigation into the applicant’s co-offender, Ryan Paul. On 27 January 2022, operatives from the State Surveillance Unit (‘SSU’) began an active surveillance of Mr Paul. During the course of that day the applicant was identified as an associate of Mr Paul and was observed driving both a stolen Volkswagen Golf and a stolen red Navarra Utility vehicle. The operation concluded with the arrest of the applicant, Mr Paul, another co-offender Marcus Small, and the applicant’s then partner Laura Paul (the sister of Mr Paul) at the applicant’s home address.[5]
[5]DPP v Symons (a pseudonym) [2023] VCC 1284, [4] (‘Sentencing Reasons’).
A pat-down search of the applicant located a plastic container containing a clear viscous substance believed to be 1,4 butanediol (part charge 2).[6]
[6]Ibid [5].
A subsequent search relevantly located the following:
•From two bags located next to the porch:
(a)One zip lock bag containing a crystal-like substance believed to be MDMA (charge 2); and
(b)Two glass vials of testosterone (charge 2).[7]
[7]Ibid [7].
•From the Volkswagen Golf:
(a)Victorian registration plates (charge 3); and
(b)A total of $2,400 (part summary charge 9).[8]
[8]Ibid [8].
•From the Ford Utility, parked in the driveway of the property:
(a)Stolen Victorian registration plates (charge 3);
(b)Black box containing various power tools (summary charge 9);
(c)Cambridge plumbing pressure set tool (summary charge 9); and
(d)Milwaukee Pack-out toolbox containing various tools (summary charge 9).[9]
[9]Ibid [9].
•From inside the unit:
(a)A total of $11,485 across various areas (summary charge 9);[10]
(b)Two zip lock bags containing 13 Xanax tablets (charge 2);
(c)Two bags containing various quantities of crystal-like substance confirmed to be methylamphetamine with a total weight of 84.9 grams at a purity of 83 per cent (charge 1);
(d)Two bags containing green vegetable matter believed to be cannabis (charge 2);
(e)Two stolen Victorian registration plates (charge 3);
(f)Black and grey metal imitation handgun (charge 4);
(g)Silver imitation firearm barrel (charge 4);
(h)Flick knife (summary charge 19);
(i)Two glass vials of testosterone (charge 2); and
(j)Various suspected stolen tools (summary charge 9).[11]
[10]While the Sentencing Reasons refer to the amount found across various areas as being ‘$11,885’, it appears that the correct amount is $11,485. The total value for summary charge 9 is therefore $13,885 (being constituted by the amount found in the unit of $11,485 + the amount found in the footwell of the Volkswagen Golf of $2,400). An amount of $4,200 found in the rear seat of the Volkswagen Golf is excluded.
[11]Sentencing Reasons, [11].
Also located but not seized was a money scale/counting machine on the kitchen benchtop.[12]
[12]Ibid [12].
The applicant was taken to the police station where he was charged and remanded. He remained in custody. After a considerable delay, the matter resolved in November 2022 and then proceeded by way of straight hand-up brief.[13]
[13]Ibid [13].
On 8 May 2023, shortly before the applicant’s plea hearing, the matter was adjourned into the Drug and Alcohol Treatment Court for a determination hearing which was held on 14 July 2023.[14]
[14]Ibid.

The sentencing reasons

After summarising the offending, the sentencing judge described the applicant’s personal circumstances. The applicant was born in 1992 and was 29 at the time of the offending. He grew up in Melbourne and reported a tough childhood full of traumatic memories, stating that his father and paternal grandfather were harsh and angry men. The sentencing judge noted that a tentative diagnosis of Oppositional Defiance Disorder had been made in 2019, but not at the time he was at school.[15]
[15]Ibid [15]–[16].
The death of the applicant’s maternal grandfather when the applicant was a teenager seemed to trigger greater substance use. Upon leaving school the applicant completed VCAL and commenced a pre-apprenticeship in carpentry which he did not complete. He maintained a consistent employment history up until 2014 when his capacity to manage workplace commitments, family and intimate relationships was compromised by his escalating drug use.[16]
[16]Ibid [17]–[18].
The sentencing judge recorded that the applicant had been assessed as having an IQ in the low average to average range of intellectual functioning, but, according to clinical neuropsychologist, Dr Sara Fratti, he did not have an Acquired Brain Injury nor other permanent cognitive impairment. Psychologist, Ms Lisa Jackson, noted that the applicant was diagnosed with depression in 2017. At the time of his assessment in 2019 by Ms Jackson he presented with high levels of stress and anxiety and was assessed as a medium/high risk of reoffending.[17]
[17]Ibid [19].
The sentencing judge recorded the applicant’s history of substance abuse, which progressed to methamphetamine use at age 17.[18] The sentencing judge considered that the applicant’s criminal record reflected his substance use history, stating:
[The applicant] first appeared in front of the courts in 2013 when aged 20. Since that time [the applicant has] been sentenced to community orders (both standalone or in combination with terms of imprisonment) all of which [the applicant has] breached by non-compliance or on-order offending or both, and [the applicant has] also been dealt with by immediate terms of imprisonment. [The applicant’s] offending has consisted primarily of drug offences (possession and trafficking, this being [the applicant’s] fourth conviction for trafficking)[19] property, dishonesty, driving offences (including when pursued by police, which is of great concern to the court) and Bail Act offences.
In July 2021 [the applicant was] sentenced to 6 months’ imprisonment and a community corrections order of 12 months’ duration. This index offending, that is the offending for which [the applicant] is being sentenced today, was committed four months after that last community corrections order commenced.[20]
[18]Ibid [20].
[19]This appears to be an error as this was the applicant’s fifth conviction for trafficking.
[20]Sentencing Reasons, [21]–[22].
The sentencing judge considered that the applicant’s prior criminal history impacted his assessment of the need for specific deterrence, prospects of rehabilitation, moral culpability, and the need to protect the community.[21]
[21]Ibid [24].
However, the sentencing judge also recorded that, during the long period of remand the applicant had completed as many programs as possible and engaged in counselling. Although he had unfortunately acquired an opioid dependence, he had otherwise remained drug free and begun to reconnect with family.[22] The sentencing judge also noted that the clinical advisor assessment report (exhibit 3) and the case management assessment report (exhibit 4) both supported that a DATO was an appropriate disposition.[23] The respondent had also conceded that such a disposition was open to the court.[24]
[22]Ibid [25].
[23]Ibid [26]–[27].
[24]Ibid [31].
In considering the objective gravity of the offending, the sentencing judge noted that trafficking in drugs of dependence is ‘serious offending’. He recorded that the quantity, role, duration, and motivation for the offending are all important indicators of seriousness.[25]
[25]Ibid [34].
The sentencing judge observed that the applicant’s charge is a single date charge and that he may have begun to traffick to support his own needs. Nevertheless, it was clear that the applicant had engaged in his own ‘commercial enterprise of trafficking from which [the applicant was] gaining substantial material benefit, as the cash and collection of trade tools’ made clear. Further, the applicant used stolen registration plates to hide the provenance of the vehicles he was driving. The sentencing judge noted that the imitation firearm (charge 4) is a matter of great concern to the courts. He considered that all of the offending was aggravated by the fact that it was committed whilst the applicant had been but four months on his latest community corrections order (‘CCO’). The sentencing judge found that the applicant well knew of the wrongfulness of his actions and that his moral culpability was ‘high’.[26]
[26]Ibid [35]–[36], [38]–[39].
The sentencing judge recorded that in sentencing the applicant, he must have regard to a range of factors in accordance with s 5 of the Sentencing Act 1991 (the ‘Act’) including general deterrence, specific deterrence, the need to protect the community, denunciation, current sentencing practices and statutory maximum penalties. However, that he also should also ensure that the applicant was rehabilitated and reintegrated into society. Further, that he needed to pass ‘no greater sentence than is necessary in all the circumstances of the case …’[27]
[27]Ibid [40]–[42].
The sentencing judge noted that specific deterrence and the need to protect the community from the applicant’s continued offending loomed large in the sentencing process. However, that in considering making a DATO, the applicant’s rehabilitation and the protection of the community (that can be achieved through rehabilitation) has greater importance than the other sentencing purposes in s 5(1) of the Act.[28]
[28]Ibid [43].
The sentencing judge recorded that he was satisfied on the balance of probabilities that:
(a)the applicant has a polysubstance dependency (including methylamphetamine and GHB);
(b)the applicant’s dependency contributed, in broad terms, to the commission of the offending;
(c)that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than 4 years;
(d)that the applicant is not charged with offending, nor is he subject to any order that would make him ineligible for a DATO; and
(e)that it is appropriate in all the circumstances to make such an order.[29]
[29]Ibid [44].
The sentencing judge also cited the applicant’s plea of guilty; that the plea was to be given particular recognition as it was entered during the COVID-19 pandemic; that the applicant had maintained abstinence (apart from his custody opioid habit); that he had demonstrated insight and resolve; and that he had supportive factors (his family and friends).[30]
[30]Ibid [45]–[46], [48]–[52].

Proposed ground 1

Submissions

The applicant submitted that the sentence on summary charge 9 was manifestly excessive having regard to the following matters:
•the sentence imposed was 42 per cent of the relevant maximum;
•the sentence of 0.8 years was well above the median term of 0.25 years;
•the sentencing judge did not suggest that this was a particularly serious example of the offence; and
•the applicant had pleaded guilty to the charge during the COVID-19 pandemic.[31]
[31]Citing Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
The respondent submitted that the sentence was not ‘wholly outside the range of sentencing options available’ to the sentencing judge when all the circumstances were considered;[32] highlighting:
•while the offending was arguably not a ‘high degree’ of objective seriousness, it was also not among the least serious examples of offending of its kind;
•the charge was a rolled up charge that involved both cash and tools which were connected to trafficking activity;
•the applicant has a substantial and relevant criminal history, with six prior convictions in respect of this offence;
•the statistics are ‘of limited utility’ given that they do not indicate the nature of the particular offending, the circumstances of the offender, and any other offences for which an offender stood to be sentenced; and
•that only 4 months of the 10 months’ imprisonment were ordered to be served cumulatively. Hence, even if this Court was to find that the sentence imposed on summary charge 9 was infected by error, it ought to refuse the application for leave on proposed ground 1, as there is no reasonable prospect that this Court would impose a less severe sentence or reduce the total effective sentence.[33]

Consideration

[32]Citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

[33]Referring to Criminal Procedure Act 2009, ss 280(1)(a) and (b).

It may be accepted that the individual sentence in respect of summary charge 9 was above the median as reflected by the sentencing statistics. Further, that the applicant pleaded guilty which is worthy of greater weight in mitigation because it was made during the COVID-19 pandemic.[34]
[34]Worboyes [2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA); Barnard (a pseudonym) v The Queen [2022] VSCA 42, [18] (Priest and T Forrest JJA).
Against this, the applicant accepted that the possession of approximately $13,000 worth of cash was ‘not an insignificant act of criminality’. The sentencing judge also expressly found that the cash and tools were connected to the applicant’s commercial enterprise of trafficking. As well as an extensive criminal history, the applicant also had six prior convictions for this particular offence. In the light of the applicant’s continued offending, the sentencing judge was correct to suggest that the principles of specific deterrence and community protection ‘loom[ed] large’ in the sentencing process.
The individual sentence of 10 months is high. However, when considered overall, I am not satisfied that it is ‘wholly outside the range’ in this particular case.
In any event, even if there was an error, the cumulation in respect of summary charge 9 was only 4 months. The overall offending in this case involved a high degree of criminality involving trafficking and firearm offences. There was also an extensive prior criminal history (including four prior convictions of trafficking). In such circumstances, I consider that there is no reasonable prospect that the Court would impose a less severe sentence or reduce the total effective sentence of 33 months and 80 days.[35]
[35]Criminal Procedure Act 2009, s 280(1).

Proposed ground 2

Applicant’s submissions

Insofar as the written submissions appear to be relevant to the reformulated ground,[36] the applicant contended that, while the Drug Court requires that a term of not more than 4 years be imposed, ‘artificially inflating sentences’ to facilitate rehabilitation and treatment risks violating the fundamental principle of parsimony. The applicant highlighted that, pursuant to s 18ZD(2) of the Act, the Drug Court must impose the sentence of imprisonment that it would have imposed if it had not made the DATO. The treatment component can still be effective absent a substantial custodial part. The applicant suggested that imposing an ‘unduly onerous custodial part’ was contrary to the principle of parsimony.
[36]Counsel for the applicant accepted that the written submissions on proposed ground 2 could be ignored insofar as they made references to parity.

In oral submissions, the applicant submitted that there was a tension between the desire of a judge to rehabilitate through the Drug Court program and long standing principles that require a judge not to impose any further time than is necessary to achieve the aims of sentencing, including parsimony. Counsel for the applicant submitted that the sentencing judge had impermissibly increased the sentence to ensure the applicant had a substantial term of imprisonment (beyond the lengthy pre-sentence detention) ‘hanging over the [applicant’s] head’ to effectively ‘make the treatment work’.
In supporting this submission the applicant submitted that:
(a)the applicant had already spent 18 months on remand such that, if he was only sentenced for 2 years he would only have 6 months ‘runway’ to promote rehabilitation and treatment interventions through the Drug Court program;
(b)it was within the power of the sentencing judge to decline to impose a DATO given the lengthy period of remand; and
(c)a passage from the plea hearing transcript suggested that the sentencing judge had erred as alleged.

Respondent’s submissions

The respondent submitted that:
•there was nothing in the detailed reasons which suggest that the sentencing judge failed to have proper regard to parsimony or proportionality in circumstances where neither party specifically referred to such principles;
•the passage of transcript identified did not demonstrate the alleged error;
•it is counter intuitive for the sentencing judge to have declined to impose a DATO when it was the applicant himself who had sought the DATO;
•that the sentence of 33 months was reasonably open in circumstances where the applicant conceded that the sentence of 25 months on the trafficking charge (charge 1) was within range; and
•although the applicant had identified a perceived justification for error, he had failed to establish that the sentencing judge did in fact err.

Legal framework

A DATO is imposed by the Drug Court under pt 3 div 2 sub-div 1C of Act and requires the written consent of an offender.[37] While the sentencing principles in s 5(1) apply to matters dealt with in the Drug Court, s 18X(2) requires the Drug Court to ‘regard the rehabilitation of the offender and the protection of the community from the offender (achieved through the offender’s rehabilitation) as having greater importance’ than the other principles under s 5(1).
[37]The Act, s 18Z(3)(b).
A DATO is comprised of a treatment and supervision part, as well as a custodial part.[38]
[38]Ibid s 18ZC.
The treatment and supervision part consists of core conditions (which apply to all offenders)[39] and program conditions (which are tailored to the individual offender).[40] Program conditions operate for 2 years (regardless of the length of the custodial part), unless the treatment and supervision part of the DATO is cancelled earlier.[41]
[39]Ibid s 18ZF(2).
[40]The Drug Court must attach to a DATO at least one program condition: ibid s 18ZG(2). The program conditions which may be attached are set out in s 18ZG(1).
[41]Ibid s 18ZC(6).
The core conditions, if matched with a custodial part of 2 years or less, operate for 2 years. However, if matched with a custodial part of more than 2 years, the core conditions operate for the length of the custodial part.[42]
[42]Ibid s 18ZC(5).
The custodial part is to be no more than 4 years in duration (in the County Court).[43] The Drug Court must impose the sentence of imprisonment that it would have imposed if it had not made the DATO.[44] However, an offender is not to serve the custodial part of a DATO unless it is activated[45] ie it is held ‘in abeyance’ and only activated upon non‑compliance or cancellation of the DATO.
[43]Ibid s 18ZD(1A)(b).
[44]Ibid s 18ZD(2).
[45]Ibid s 18ZE(1).
If an offender fails to comply with the DATO, there are several options open to the court, including ‘sanctioning’ the offender by activating the custodial part of the DATO for brief periods at a time.[46] If the DATO is cancelled,[47] the court may activate the whole or part of the custodial period.[48] The Act makes provision for how the available custodial period is calculated with any pre-sentence detention deducted.[49]
[46]Ibid s 18ZL(1)(f).
[47]Which may be due to non-compliance: ibid s 18ZL, because the order was not, or is no longer, appropriate: s 18ZP, and/or non-compliance specifically by the commission of certain further offences: s 18ZN(1)(b). The DATO may also be cancelled as a reward: s 18ZK.
[48]Ibid ss 18ZP(2), 18ZN(1)(b)(i).
[49]Ibid s 18ZE.
As at the date of sentence, the applicant had 463 days of pre-sentence detention applicable to be applied to the DATO. In accordance with the above provisions, this pre-sentence detention remains in abeyance and is part of the relevant calculation only if the DATO is cancelled and the sentencing judge decides to activate the custodial component.

Analysis

Three matters can be readily disposed of.
First, in the passage of transcript cited by the applicant, the sentencing judge indicated that it was his intention to delay placing the applicant on a DATO for some 9 days to give him a chance to be ‘teed up with a case manager, an appropriate case manager …, an AOD counsellor and a clinical adviser’ which in his experience ‘always takes time.’ This meant that the applicant had another 9 days to serve (in confinement). The sentencing judge further stated:
And there is a principle of parsimony and a principle that I always have to be guide[d] by the liberty of the individual. I’m explaining to you the reason why you’re not being released today is because my having determined to place you on a Drug and Alcohol Treatment Order, the next stage is to see you suited and … linked up with a case manager, a clinical adviser and an AOD counsellor.
Counsel’s criticism appeared to be that the sentencing judge was treating the actual fact of confinement different to the subsequent period of the DATO. This was said to be contrary to s 18ZD(2) of the Act which (he submitted) meant that a DATO must be treated as a sentence of imprisonment.
However, the sentencing judge was simply recognising the fact that a period of actual confinement was qualitatively different from a period subject to the DATO (when the custodial time is held in abeyance). It does not mean that the sentencing judge failed to impose a sentence in accordance with s 18ZD(2), that is, a sentence of imprisonment that he would have imposed if he had not made the DATO. It also demonstrates the sentencing judge’s awareness of the principle of parsimony, even though that principle had not been cited by the applicant’s counsel.
Secondly, insofar as the applicant relied on a significant period of pre-sentence detention, this also does not establish the error alleged. There is nothing in the reasons or transcript to suggest that the sentencing judge imposed a longer sentence to provide a longer ‘runway’ for the improper purpose of enabling the applicant to be treated.[50] For reasons already explained, the sentence was well within range. There may also be considerable doubt as to whether artificially extending the custodial part (which is held in abeyance) would ‘make the treatment work’ in any event. The program conditions operate for 2 years regardless of the length of the custodial part of a DATO.
[50]See Boulton v The Queen (2014) 46 VR 308, 326 [67], 327 [72], 328 [75] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA); [2014] VSCA 342.
Thirdly, and relatedly, the applicant appeared to be suggesting at various points that, simply because of the long period of remand, the sentencing judge should not have imposed the DATO at all. However, this appears to be irrelevant to the proposed ground. It is also without merit given that the applicant’s counsel had expressly submitted that a DATO was an appropriate disposition,[51] and expressly referred to it as the applicant’s ‘choice’ (over a time served disposition or another opportunity for a CCO).
[51]Sentencing Reasons, [30].
Returning, then, to the terms of proposed ground 2, the simple issue raised is whether the sentencing judge failed to have proper regard to principles of proportionality and parsimony.
As this Court recently said in Director of Public Prosecutions v Lombardo:
[T]he … principles of proportionality and parsimony … ordinarily require that a court not impose a sentence more severe than is necessary to achieve the purposes for which the sentence is imposed, and not impose a sentence of confinement unless those purposes cannot be achieved without doing so.[52]
[52]DPP v Lombardo [2022] VSCA 204, [20] (McLeish, Niall and Kennedy JJA).
I am not satisfied that the sentencing judge erred in applying these principles in this particular case for three reasons.
First, for reasons given already, the applicant has failed to point to anything which suggests that the sentencing judge imposed a longer sentence than was otherwise appropriate, having due regard to principles of parsimony and proportionality.
Secondly, there is nothing in the sentencing judge’s reasons which suggests that he failed to have regard to those principles. To the contrary, he expressly stated that he needed to pass ‘no greater sentence than is necessary’.[53] The passage of transcript from the plea hearing (cited by the applicant) also shows that the sentencing judge was aware of the principle of parsimony.
[53]Sentencing Reasons, [42].
Finally, the applicant fairly conceded that the 2 years and 1 month term of imprisonment, being the base sentence in respect of the trafficking charge, was ‘wholly within the range.’ Orders for cumulation on the remaining charges (the subject of the DATO) added only 8 months to the base. For reasons given already, such a disposition was well open on ordinary principles and in the light of the seriousness of the offending.
I am therefore not satisfied that the sentencing judge erred in applying principles of proportionality and parsimony. In particular, I am not satisfied that he ‘lengthened the sentence’ for an impermissible purpose.

Conclusion

The application for leave to appeal must be refused.

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[2023] VSCA 316

14 December 2023