Tarasinski v The King
[2025] VSCA 162
•10 July 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2025 0027 |
| BENJAMIN TARASINSKI | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGE: | Kidd JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 03 May 2025 |
| DATE OF JUDGMENT: | 10 July 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 162 |
| JUDGMENT APPEALED FROM: | DPP v Tarasinski [2024] VCC 1721 (Judge Cannon) |
---
CRIMINAL LAW – Sentence – Application for leave to appeal – Trafficking in a drug of dependence – Possession of a drug of dependence – Prohibited person possess firearm – Knowingly deal in proceeds of crime – Where offending committed on parole – Whether cumulation orders amounted to double punishment – Whether sentencing judge erred in approach to totality – Whether sentencing judge erred in consideration of drug quantity – Whether sentence was manifestly excessive – No error in sentencing judge’s approach – Sentence not manifestly excessive in the circumstances – Leave refused.
DPP v Bowen (2021) 65 VR 385; Nguyen v The Queen [2019] VSCA 184; DPP v Pham (2015) 256 CLR 550; Velevski v The Queen [2010] VSCA 90; Zarghami v The Queen [2020] VSCA 74, referred to.
Clarkson v The Queen (2011) 32 VR 361; DPP v Johnson (2011) 35 VR 25; Einfeld v The Queen (2010) 200 A Crim R 1; Hogan v The King [2025] VSCA 142; Johnson v The Queen [2022] VSCA 228; Lago v The Queen [2015] NSWCCA 296; Pearce v The Queen (1998) 194 CLR 610; DPP v Kelly [2018] NSWCCA 44; R v Pidoto (2006) 14 VR 269; The Queen v Ververis [2010] VSCA 7; Wong v The Queen (2001) 207 CLR 584, applied.
Sentencing Act 1991, s 16(3B).
---
| Counsel | |||
| Applicants: | Mr C Hooper | ||
| Respondent: | Mr L McAuliffe | ||
Solicitors | |||
| Applicants: | A Valos, Ann Valos Criminal Law | ||
| Respondent: | A Hogan, Office of Public Prosecutions | ||
KIDD JA:
On 30 October 2024, the applicant was sentenced in the County Court of Victoria following his plea of guilty as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Prohibited Person Possess a Firearm | 10 years | 15 months | 3 months |
| 2 | Traffick Drug of Dependence | 15 years | 3 years | Base |
| 3 | Possess a Drug of Dependence | 5 years | 6 months | |
| 4 | Possess a Drug of Dependence | 5 years | 6 months | |
| 5 | Possess a Drug of Dependence | 5 years | 6 months | |
| 6 | Knowingly Deal with Proceeds of Crime | 15 years | 12 months | 6 months |
| Related Summary Offences | ||||
| 2 | Possess Cartridge Ammunition without Licence / Permit | 40 penalty units | $500 fine | N/A |
| 9 | Breach Prescribed Term / Condition of Parole | 30 penalty units or 3 months | 2 months | |
| Total Effective Sentence: | 3 years and 9 months | |||
| Non-Parole Period: | 18 months | |||
| Pre-sentence Detention Declared: | 35 days | |||
| Section 6AAA Statement: | Total Effective Sentence 5 years Non-Parole Period 3 years | |||
| Other Relevant Orders: Forfeiture and disposal orders | ||||
The proposed grounds of appeal
The applicant now seeks leave to appeal against his sentence on four grounds, namely:
(1)the learned sentencing judge erred in imposing a sentence in respect of charges 2 and 6 that amounted to doubly punishing the applicant;
(2)the learned sentencing judge erred in imposing an order for cumulation in reliance on s 16(3B) of the Sentencing Act 1991, and in failing to state her reasons for doing so having regard to the principle of totality;
(3)the learned sentencing judge erred in treating the quantum of drugs trafficked under charge 2 as an aggravating feature of the offending; and
(4)the learned sentencing judge erred in imposing a sentence in respect of charge 2 that was manifestly excessive having regard to all of the circumstances.
The application for leave to appeal against sentence was filed on 13 February 2025 and is therefore over 2 months out of time. An affidavit was filed by the applicant’s solicitor explaining that this delay was due to the late provision of legal advice. As I will explain, the proposed grounds of appeal are not reasonably arguable. As it would be futile to grant an extension of time, the application for an extension of time within which to file a notice of application for leave to appeal will be refused.
Circumstances of the offending
On 26 January 2023, a search warrant was executed at the applicant’s residence pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981.
At the time, the applicant was on parole. The parole order arose from a custodial sentence imposed on the applicant in November 2019 by Judge O’Connell in respect of separate offending (‘Judge O’Connell Sentence’). Judge O’Connell had sentenced the applicant to 6 years’ and 9 months imprisonment with a non-parole period of 4 years’ and 9 months for offending in relation to a home invasion.
The applicant was at the premises when the search was undertaken. He indicated to police that he had methylamphetamine and a quantity of cash in his bedroom, and that a shotgun and ammunition were also in the house. A search was conducted and a number of items were located, including:
(a)a double-barrel sawn-off shotgun in the bathtub (charge 1);
(b)a substance containing methylamphetamine. This weighed 96.7 grams, 83 grams of which was pure methylamphetamine (charge 2);
(c)small quantities of 1,4 butanediol, cocaine, and diacetylmorphine (charges 3, 4, 5);
(d)$16,515 in cash (charge 6);
(e)five 12-gauge shotgun shells (summary charge 2); and
(f)a cash counting machine.
The applicant was interviewed at the Werribee Police Station. He confirmed that the drugs, shotgun and ammunition had been at the premises and indicated that the cash had come from government benefits, betting and labouring work.
Reasons for sentence
The sentencing judge assessed the offending to be serious on the basis of the quantity of drugs involved, the applicant’s acceptance that he played the principal role in — and stood to profit from — the trafficking activity, and the additional factors of the firearm and significant amount of cash that were also in the applicant's possession.[1] The conduct was aggravated by the fact that it occurred while the applicant was on parole.[2]
[1]DPP v Tarasinski [2024] VCC 1721, [23]–[26] (Cannon J) (‘Reasons’).
[2]Reasons, [27].
In her reasons, the sentencing judge set out the applicant’s criminal history, including relevant drug-related charges dating back to 2005 and multiple terms of imprisonment.[3] Her Honour considered the applicant’s priors to be ‘most concerning’ given the similarities between the current offending and previous charges.[4] General regard was had to the hardships associated with the applicant’s imprisonment under the Judge O’Connell Sentence and her Honour noted the relevance of totality in light of that recent period of incarceration.[5]
[3]Reasons, [29]–[40].
[4]Reasons, [40].
[5]Reasons, [77].
The reasons refer to the applicant’s background, which involved physical violence at the hands of his father, and a long history of heavy drug abuse, including methylamphetamine.[6] He left home at a young age and did not return to school after being expelled in year 8 for cannabis use. While the applicant had sustained some periods of abstinence, he had relapsed multiple times following periods of incarceration.[7] However, her Honour noted that the applicant did have good community supports.[8]
[6]Reasons, [43]–[53].
[7]Reasons, [57].
[8]Reasons, [64].
The sentencing judge took into account the psychological evidence that the applicant suffered from mild persistent depressive disorder with intermittent major depressive episodes, post-traumatic stress disorder and substance use disorders.[9] These mental health conditions were associated with the applicant’s childhood experiences of violence and subsequent drug use. The psychologist said the drug use played a significant role in his offending.[10] Her Honour allowed for the fact that a custodial sentence would be more difficult in light of these mental health issues and gave full weight to the applicant’s difficult childhood, noting however the significant emphasis on general deterrence in the circumstances.[11]
[9]Reasons, [69].
[10]Reasons, [72].
[11]Reasons, [74].
The sentencing judge emphasised that the applicant’s rehabilitation was ‘very much linked’ to addressing his drug and mental health issues, placing ‘fairly substantial weight’ on specific deterrence in light of the applicant’s ‘guarded’ prospects for rehabilitation.[12] Her Honour also noted the danger of the applicant becoming institutionalised, given his past significant periods of incarceration.[13]
[12]Reasons, [83].
[13]Reasons, [79].
Favourable account was taken of the applicant’s guilty pleas and his cooperation with police,[14] and her Honour also had regard to the fact that during the current period in custody the applicant had experienced greater hardship having been unable to undertake any programs.[15]
[14]Reasons, [65].
[15]Reasons, [78].
Proposed ground 1: The sentencing judge erred in imposing a sentence in respect of charges 2 and 6 that amounted to doubly punishing the applicant. The applicant relies on the following particulars:
(a)the proceeds of crime (charge 6) were said to have been obtained in the course of the trafficking activity (charge 2); and
(b)the sentences should have been wholly concurrent.
Parties’ submissions
The applicant submits that there was no separate criminality distinguishing the trafficking charge (charge 2) and the proceeds of crime charge (charge 6).
The charges were, the applicant contends, each related to a single date and were entirely interrelated, as the cash was profit produced by the trafficking. The sentencing judge identified the quantum of cash located as ‘significant’ and considered this in the context of the seriousness and commerciality of charge 2.
The applicant argues that, in the circumstances, any order for cumulation was inappropriate and a wholly concurrent sentence should have been made in respect of these charges.
The respondent submits there was no error here given that a wide discretion is conferred on the sentencing judge to make orders for cumulation in such circumstances.[16] The duty to avoid double punishment does not prohibit a sentencing judge from ordering a measure of cumulation where there is an overlap in the offending.
[16]Nguyen v The Queen [2019] VSCA 184 (‘Nguyen’) (Priest JA, Kidd AJA).
The respondent submits, in this case, that it was open to the sentencing judge to impose a measure of cumulation on charges 2 and 6 in circumstances where those charges involved distinct forms of criminal conduct. The moderation of the individual sentence on charge 6, in particular, appropriately reflected the need to avoid double punishment.
Analysis
Where there is the potential for overlap between factors that are relevant to different offences, it is important to acknowledge the risk of double punishment.[17]
[17]Hogan v R [2025] VSCA 142, [58] (Niall CJ and Kidd JA); Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (McHugh, Gummow, Kirby, Hayne and Callinan JJ).
As to how that issue is to be resolved, this Court has observed in Nguyen v The Queen:
The issue of whether there has been double punishment is to be resolved by approaching the matter as one of common sense, and each case must be determined in accordance with its own circumstances.[18]
[18]Nguyen [2019] VSCA 184, [29] (Priest JA and Kidd AJA) citing Pearce v The Queen (1998) 194 CLR 610, 623 [40] (McHugh, Hayne and Callinan JJ); [1998] HCA 57.
Further:
The discretion to make orders for cumulation is a very broad one and should not be unduly circumscribed by appellate intervention. The authorities recognise that judges should be allowed great latitude in tailoring an appropriate total effective sentence.[19]
[19]Nguyen [2019] VSCA 184, [40] (Priest JA and Kidd AJA).
The applicant accepts that the proceeds of crime offending (charge 6) properly supplied some context to an assessment of the seriousness of the drug trafficking activity (charge 2).[20] The applicant accepted that it was open to the sentencing judge to conclude that the finding of the cash assisted in showing that his motivation for the drug trafficking was for profit.
[20]The concession is consistent with authority. See Hogan v R [2025] VSCA 142, [34]-[36] (Niall CJ and Kidd JA) and the authorities cited therein.
It is not entirely clear, however, that the sentencing judge treated the proceeds of crime as having been obtained in the course of trafficking activity as the applicant asserts. Very little was said about this issue by the parties at the plea hearing.
In her reasons, the sentencing judge initially identified the quantum of cash located as ‘significant’ and considered this, in addition to the sawn-off shotgun seized by police, in the context of assessing the seriousness and commerciality of charge 2.[21]
[21]Reasons, [25]-[26].
The sentencing judge later returned to the significance of the proceeds of crime:
I must say that in addition to your drug use, although the trafficking was funding this, I do not accept that you were effectively living hand to mouth in this regard as many drug addicts do. The amount of cash at your premises and the quantity of the methamphetamine in your possession for the purpose of trafficking indicates that part of your motivation was to make a profit.[22]
[22]Reasons, [73].
On one reading, her Honour simply concluded that the applicant’s access to such a large amount of cash — irrespective of the source — was cogent proof that the applicant was selling drugs for profit and not to fund a ‘hand to mouth’ existence.[23]
[23]The Queen v Ververis [2010] VSCA 7, [33]–[35] (Maxwell P and Buchanan JA); Johnson v The Queen [2022] VSCA 228, [12] (Priest AP and Niall JA).
In any event, even if the proceeds of crime did represent trafficking profits, as a matter of logic, the specific proceeds of crime the subject of charge 6 could not have been derived from the specific trafficking the subject of charge 2:
•charge 2 was founded upon the discovery of a quantity of drugs on a single day (83 grams of pure methylamphetamine);
•by his plea, the applicant accepted that he possessed those drugs for the purpose of sale;
•self-evidently, the 83 grams of pure methylamphetamine had not yet been sold and had not yielded any cash proceeds or profit;
•the cash, which founded charge 6, could not therefore have been the proceeds of the specific drug trafficking activity comprised by charge 2; and
•the proceeds of crime were the product of past criminal activity, whereas the possession of the methylamphetamine for sale contemplated the applicant’s intention to sell those drugs in the future.[24]
[24]Velevski v The Queen [2010] VSCA 90, [32] (Habersberger AJA, Buchanan and Mandie JJA agreeing at [1], [2]); Hogan v R [2025] VSCA 142, [33] (Niall CJ and Kidd JA). Charge 2 is based upon the extended definition of ‘trafficking’ in s 70 of the Drugs, Poisons and Controlled Substances Act 1981, which includes having a drug of dependence in ‘possession for sale’.
Even if it is accepted that the proceeds of crime represented trafficking profits, it cannot be said that the proceeds of crime conduct was wholly subsumed by the specific trafficking covered by charge 2.
I therefore reject the applicant’s contention that there was no distinct or separate criminality covered by the trafficking charge (charge 2) and the proceeds of crime charge (charge 6) respectively.
If the proceeds of crime represented trafficking profits, then there is some overlap between the charges in time, place, and purpose. That overlap did not preclude cumulation. I am unpersuaded that this overlap has not been reflected in the sentences imposed, including the degree of cumulation ordered. The individual sentence of 12 months’ imprisonment imposed for the deal with proceeds of crime charge (charge 6) was moderate. That sentence and the 6 months cumulation ordered on the trafficking charge (charge 2) does not bespeak double punishment. Put another way, the degree of concurrency (6 months) suggests due allowance was made for any overlap in criminality.
In my view, the moderate sentence imposed for the offence of prohibited person possessing firearm offence (15 months’ imprisonment), and the very modest cumulation ordered for that offence (3 months), is a further indication that her Honour was very much alive to the question of double-punishment.
While it is true that her Honour did not explicitly advert to the question of double punishment within the context of these sentences, I am not persuaded that she doubly punished the applicant.
The ground is not reasonably arguable.
Proposed ground 2: The sentencing judge erred in imposing an order for cumulation in reliance on s 16(3B) of the Sentencing Act 1991, and in failing to state her reasons for doing so having regard to the principle of totality.
Parties’ submissions
The applicant’s argument in his written case and at the oral hearing did not clearly align with the complaint in the ground of appeal.
At the oral hearing of this application, the applicant accepted that s 16(3B) of the Sentencing Act 1991 had no application to this sentence given that the Judge O’Connell Sentence had expired by the time he was sentenced in this matter.
It was argued by the applicant that by adjourning the sentencing hearing until after the expiry of the applicant’s reclaimed parole under the Judge O’Connell Sentence, the sentencing judge deprived the applicant of the opportunity to:
•establish exceptional circumstances under s 16(3B); and
•have his new sentence served concurrently (or partly so) with the Judge O’Connell Sentence.
The applicant also argued in his written case that her Honour confined the application of the principle of totality. As I understand the argument, the applicant says that when applying the totality principle, the sentencing judge only took into account the Judge O’Connell Sentence. She did not apply the totality principle to an internal assessment of the wrongdoing associated with the instant offending to ensure the total period of imprisonment to be served was appropriate.
The respondent submits as s 16(3B) did not apply at all, the ground is misconceived. In any event, the sentencing judge was clearly alive to the need to achieve totality having expressly referred to it in her sentencing remarks. The ‘extremely modest’ orders for cumulation reflect this.
As to ‘the lost opportunity’ to address the Court on the presumption of cumulation under s 16(3B), the respondent points out that when the applicant was provided an opportunity to address the Court on the presumption of cumulation under s l6(3B), this was not taken up. The respondent also points out that the sentencing judge ultimately made clear at the end of the plea that she would sentence after the reclaimed parole sentence had expired. This was not resisted by the applicant.
Analysis
Section 16(3B) of the Sentencing Act 1991 creates:
a presumption, rebuttable where “exceptional circumstances” exist, that a term of imprisonment for an offence committed while on parole is to be served cumulatively on any period of imprisonment required to be served in custody on cancellation of that parole.[25]
[25]DPP v Bowen (2021) 65 VR 385, 397, [47] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA); [2021] VSCA 355.
As to the chronology of the proceedings:
•the plea hearing in this matter was conducted on 22 August 2024;
•her Honour had originally set down the date for sentence on 18 September 2024. This was later administratively adjourned until the actual sentence date of 30 October 2024; and
•in the meantime, the Judge O’Connell Sentence expired on 25 September 2024.
This meant that by the time of sentence in this matter (30 October 2024), the Judge O’Connell Sentence had expired. Section 16(3B) therefore had no application to play in the sentence.
Had the sentencing judge sentenced the applicant while he was serving the Judge O’Connell Sentence, a presumption of cumulation with that sentence would have applied — rebuttable only by the establishment of exceptional circumstances — and the sentencing judge would have been constrained in her application of the principle of totality.[26]
[26]DPP v Bowen (2021) 65 VR 385, 397 [47] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA); [2021] VSCA 355; DPP v Johnson (2011) 35 VR 25, 39 [67]–[68] (Redlich JA); [2011] VSCA 288.
As it happened, the applicant was relieved of the burden of rebutting the presumption of cumulation by the establishment of exceptional circumstances. The sentencing judge was also free from any statutory constraint in applying the totality principle when taking into account the Judge O’Connell Sentence.
In my view, this was all to the applicant’s benefit.
Further, whether the applicant would have discharged the burden of exceptional circumstances — had he still been serving his reclaimed parole period under the Judge O’Connell Sentence — is a matter of conjecture.
I would add that the plea hearing in this matter took place only a month before the Judge O’Connell Sentence expired. The scope for any meaningful concurrency between this sentence and the Judge O’Connell Sentence was very limited, if it really existed at all.
In all the circumstances, it seems to me that to speak of the applicant having ‘lost an opportunity’ for concurrency is quite artificial.
Importantly, the sentencing judge went to great lengths to state that she was applying the principle of totality having regard to the sentence the applicant had served and completed under the Judge O’Connell Sentence. She said:
I take into account in a general way that when you were sentenced by His Honour Judge O’Connell, you served a good deal of the non-parole period in harsh conditions due to COVID measures. These saw you being subjected to 23-hour lockdown days on many occasions and an inability to have visitors. Also, there were other facilities at the prison such as the gym and places of religious observance which could not be pursued by you. I take these hardships into account in a general way, but it does not really impact my consideration of the principle of totality and how it ought be applied in circumstances where the offending before me occurred after you were released from that most onerous sentence, only returning to gaol after you reoffended some six months later. However, totality is a real consideration in relation to your present situation in circumstances where, until recently, you were undergoing the balance of your head sentence imposed by His Honour Judge O’Connell and I understand this expired on 25 September this year.[27]
[27]Reasons, [77] (emphasis added).
At one point in oral argument, the applicant fastened onto the words emphasised in this passage, contending that the sentencing judge neutralised or devalued the application of the totality principle insofar as it applied to the Judge O’Connell sentence.
I do not agree.
Immediately before the impugned remark, the sentencing judge was focussed upon the harsh COVID conditions which applied at the time the applicant was serving the non-parole period of the Judge O’Connell Sentence. In my view, by making the impugned remark, the sentencing judge was doing no more than acknowledging that the harsh COVID conditions — which applied during the Judge O’Connell Sentence — no longer applied.
The sentencing judge was certainly not dismissing the application of the totality principle to the applicant’s case. So much is clear by her statement which followed on from the emphasised words where her Honour said that ‘totality is a real consideration in relation to your present situation in circumstances where, until recently, you were undergoing the balance of your head sentence imposed by his Honour Judge O’Connell’.[28]
[28]Reasons, [77].
I also reject the argument raised in the written case (but barely pursued at the oral hearing) that her Honour confined the application of the principle of totality to the Judge O’Connell Sentence. When her sentencing remarks are read as a whole, it is clear that her Honour did not limit the application of the totality principle in this way. It is true that in the passage reproduced above, her Honour focuses upon the Judge O’Connell Sentence.[29] In my view, this simply reflects the fact that the Judge O’Connell Sentence was a significant matter insofar as totality was concerned, as indeed it was.
[29]Reasons, [77].
The moderate sentences imposed — with minimal orders for cumulation — also suggest that the sentencing judge gave full weight to totality across the entirety of the sentence.
I do not think her Honour could have done more than this for the applicant.
The ground is not reasonably arguable.
Proposed ground 3: The sentencing judge erred in treating the quantum of drugs trafficked under charge 2 as an aggravating feature of the offending.
Parties’ submissions
The substance of the applicant’s complaint is that by finding that the trafficking charge was a serious example of such offending, the sentencing judge must have impermissibly treated the quantity of the drug as the ‘controlling factor’ or ‘chief factor’.[30]
[30]R v Pham (2015) 256 CLR 550, 562 [36], 564 [45] (French CJ, Keane and Nettle JJ); [2015] HCA 39.
The applicant emphasised that the actual activities engaged in by the applicant — which were limited to possession and trafficking on a single occasion — should have been the central consideration. Such confined activity did not justify a finding that charge 2 involved serious offending, according to the applicant.
The respondent submitted that her Honour had legitimate regard to quantum as a relevant factor informing the assessment of objective seriousness. The respondent submits that the sentencing judge considered it to be a serious example of trafficking in light of the role played by the applicant, the fact that he stood to profit from the offending and the weight of the drugs. Her Honour properly sentenced him for a trafficking simpliciter charge, as is reflected by the sentence itself.
Analysis
The sentencing remarks reveal no error in the sentencing judge’s treatment of quantum or in her Honour’s assessment of the seriousness of this offending.
In my view, ‘the quantity seized on this particular occasion necessarily bespeaks serious offending’.[31] Here, the applicant was trafficking just over 27 times the threshold for a traffickable quantity of pure methylamphetamine (the threshold being 3 grams).
[31]Zarghami v The Queen [2020] VSCA 74, [60] (Kaye, Forrest and Osborn JJA).
It is well understood that the greater the quantity trafficked, generally the more serious the offence.[32]
[32]See Wong v The Queen (2001) 207 CLR 584, 609 [67]-[69] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64; R v Pidoto (2006) 14 VR 269, 278 [41] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185.
The applicant’s argument under this ground seems to centre upon the proposition that he fell to be sentenced for isolated or confined trafficking activity at a moment in time on a single date. The nub of his complaint is that the sentencing judge’s focus upon the quantity of the drugs has allowed the limited nature of the trafficking activity under charge 2 to become swamped or lost in the sentencing calculus.
It may be accepted that the trafficking was constituted by possession for sale on a single date.
But, as I have said above, the applicant was in possession of a significant quantity of drugs for the purpose of sale. This contemplates activity beyond the moment of possession. It extends to the intention to sell the drugs ‘over a period of time’.[33] While the applicant pleaded guilty to trafficking on a single date, it is artificial to suggest that this was momentary offending.
[33]Velevski v The Queen [2010] VSCA 90, [32] (Buchanan and Mandie JJA, Habersberger AJA).
The sentencing judge was also at pains to emphasise that despite the quantity, the applicant fell to be sentenced for trafficking simpliciter.[34] Importantly, her Honour stated that her assessment of the offending as serious was by reference to trafficking simpliciter; she described it as ‘a serious example of that offence’.[35]
[34]Reasons, [25].
[35]Reasons, [25] (emphasis added).
It is also clear that the sentencing judge’s finding that this was serious offending was not solely based upon the quantity of drugs. Her Honour also took into account the fact that the applicant ‘stood to gain from the profits of trafficking’, and ‘had the principal role in the trafficking activity’.[36] The applicant does not quibble with these findings.
[36]Reasons, [24].
It is plain that her Honour was careful not to sentence the applicant for a more serious offence than trafficking simpliciter. She used the quantity — permissibly — to inform the seriousness of the trafficking simpliciter charge for which he fell to be sentenced. The sentence of 3 years’ imprisonment imposed for charge 2 confirms this. A sentence for trafficking in a commercial quantity of drugs would be expected to attract a significantly higher sentence.[37]
[37]The threshold for a commercial quantity of pure methylamphetamine was 50 grams.
The ground must fail.
Proposed ground 4: The sentencing judge erred in imposing a sentence in respect of charge 2 that was manifestly excessive having regard to all of the circumstances.
Parties’ submissions
The applicant submits that the sentencing judge failed to give proper weight to the mitigatory factors of the applicant’s subjective circumstances, including the applicant’s guilty plea, delay and the impact of his childhood trauma, his drug addiction, his low level of formal education and the fact that he left home at a young age owing to his drug use.
While the applicant accepts that the quantity of methylamphetamine was significant, he emphasises that the ultimate charge was for trafficking on a single date. The applicant says the sentence fails to recognise the confined nature of the offending.
As a result, the applicant submits that a sentence was imposed on charge 2 that was manifestly excessive.
The respondent argued that the sentencing judge carefully balanced all of the aggravating and mitigating features and submitted that it was not open for the applicant to contend that the sentence was wholly outside the permissible range. In particular, the respondent referred to the need for the sentence to reflect the seriousness of the offending and importance of general and specific deterrence, denunciation, community protection and just punishment.
Analysis
In order to succeed on the ground of manifest excess, it must be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge. This is a stringent requirement, and is difficult to satisfy.[38]
[38]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
In my view, a sentence of 3 years for charge 2 was well within the range of sentencing options available having regard to:
•the sentencing judge’s characterisation of this offending as serious given the quantum of drugs involved and that the applicant was motivated by profit;
•the fact that the applicant was on parole at the time of offending;
•the applicant’s ‘fairly lengthy and concerning’ criminal history.[39] He had received multiple terms of imprisonment over many years. One was an aggregate term of 14 months’ imprisonment in February 2020 for numerous offences, including trafficking methylamphetamine;
•the assessment of the applicant’s prospects of rehabilitation as ‘guarded’.[40] As the sentencing judge said, there was a need to ‘place fairly substantial weight on specific deterrence’;[41] and
•the role which general deterrence, public denunciation and community protection played.
[39]Reasons, [29].
[40]Reasons, [83].
[41]Reasons, [83].
Against these matters, the sentencing judge carefully considered and balanced the applicant’s personal and mitigatory factors. The sentencing judge:
•gave a ‘fairly substantial discount’ for the plea of guilty;[42]
•took into account the delay and the fact the applicant had had these matters hanging over his head since his arrest;[43]
•gave weight to his deprived background, applying Bugmy in a general way;[44] and
•allowed for the fact that custody would be ‘somewhat harder’ for the applicant because of his mental health conditions.[45]
[42]Reasons, [65].
[43]Reasons, [66].
[44]Reasons, [74] citing Bugmy v The Queen (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); [2013] HCA 37.
[45]Reasons, [75].
It is important to remember the social-ills of drug trafficking. As this Court said in Zarghami v The Queen:
Drug trafficking is pernicious. It is a form of criminal offending which appears to be easy and offers substantial financial rewards. It seeks to derive financial gain from the sale of a product to others which has the capacity to cause them serious physical and mental harm. It attacks the fabric of society and the framework of rules which forms the basis of a safe social environment within it.[46]
[46]Zarghami v The Queen [2020] VSCA 74, [62] (Kaye, T Forrest and Osborn JJA).
I am not persuaded that it is reasonably arguable that the sentence of 3 years imprisonment for charge 2, in all the circumstances, is manifestly excessive.
Indeed, I would say that this sentence, and all the sentencing orders, were restrained for serious offending of this kind, committed whilst on parole, by someone with the applicant’s criminal background. That restraint suggests that the judge gave full weight to the applicant’s mitigating factors, and paid proper regard to the issues of double punishment and totality.
Conclusion
The application for an extension of time within which to file a notice of application for leave to appeal is refused.
---
0
18
0