Topal v The Queen
[2019] VSCA 289
•6 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0086
| ABDULLAH TOPAL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 November 2019 |
| DATE OF JUDGMENT: | 6 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 289 |
| JUDGMENT APPEALED FROM: | [2019] VCC 430 (Judge Cannon) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Trafficking in drug of dependence (cocaine) – Plea of guilty – Applicant sentenced to 3 years’ imprisonment with non-parole period of 1 year – Co-offender pleaded guilty to trafficking in commercial quantity – Sentenced to 5 year CCO with 600 hours of community work – Judge reduced applicant’s sentence on account of lenient sentence on co-offender – Sentence extremely lenient – Whether parity required further reduction – Judge not required to reduce sentence to inadequate level – No error – Leave to appeal refused — Green v The Queen (2011) 244 CLR 462 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | Valos Black & Associates |
| For the Respondent | Mr C T Carr | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA:
Introduction
Between 20 July 2015 and 24 November 2015, the applicant was an active participant in a cocaine trafficking syndicate. The other members of the syndicate were Julian Gallin, Christopher Carron and Kelvin Wong. The illicit work of the syndicate involved a well-organised, high turnover retail operation. Another person, Vladamir Djordjic, was in effect the syndicate’s wholesaler. The applicant’s primary role was to collect the drugs and deliver them to the many customers of the syndicate located in various parts of Melbourne. Following a period of covert surveillance, the applicant and other syndicate members were arrested and charged with trafficking offences.
The applicant pleaded guilty to a single charge of trafficking in a drug of dependence, namely 819.5 grams of cocaine, which carried a maximum of 15 years’ imprisonment. On 1 April 2019, he was sentenced to a term of 3 years’ imprisonment with a non-parole period of 12 months.
Other members of the syndicate pleaded guilty and were sentenced as follows:
(a) Gallin (one charge of trafficking in a drug of dependence in a large commercial quantity,[1] namely 3.735 kg[2] cocaine, and one summary charge of dealing with proceeds of crime): 9 years and 6 months’ imprisonment with a non-parole period of 5 years;
(b) Wong (one charge of trafficking in a drug of dependence in a large commercial quantity, namely 2.907 kg cocaine, and one charge of dealing with proceeds of crime): 7 years’ imprisonment with a non-parole period of 4 years; and
(c) Carron (one charge of trafficking in a drug of dependence in a commercial quantity,[3] namely 900 grams cocaine): a Community Corrections Order (‘CCO’) of five years’ duration with 600 hours of community work.
[1]The maximum for which is life imprisonment.
[2]This was the sum of the amounts trafficked by Wong and the applicant plus the amount found at the St Kilda premises on 24 November 2015.
[3]The maximum for which is 25 years’ imprisonment.
Djordjic stood apart, and was sentenced to 19 years and 6 months’ imprisonment with a minimum of 14 years and 6 months after pleading guilty to trafficking in cocaine and methylamphetamine, possession of an unregistered handgun, possession of a prohibited weapon and knowingly dealing with proceeds of crime.[4]
[4]Djordjic unsuccessfully appealed against his sentence to this Court. See Djordjic v The Queen [2018] VSCA 227.
The applicant seeks leave to appeal against sentence on the single ground that, when compared to the sentence imposed on Carron, the sentence offended the principle of parity. In short, he submits that it was unjustifiable that he was sentenced to a term of imprisonment in circumstances where a co-offender, who pleaded guilty to a more serious charge involving a larger quantity of the drug, was given a CCO.
For the reasons that follow, we would refuse the application for leave to appeal. The application fails because the sentence imposed on the applicant was very lenient and it was open to the judge to conclude that any lesser sentence would be wholly inadequate for the offending.
Circumstances of the offending[5]
[5]This description of the circumstances of the offending has been drawn from DPP v Topal [2019] VCC 430 (‘Reasons for sentence’).
The cocaine was prepared and packaged at a premises in St Kilda (‘St Kilda premises’). The applicant then collected and distributed the drugs to customers by car at various locations.
Between 20 July and 24 November 2015, the applicant distributed a total of 819.5 grams of cocaine mixed with another substance. He trafficked 795.75 grams in 1,061 separate sale transactions and, on 24 November 2015, had in his possession for sale a further 23.8 grams.
Gallin established and managed the syndicate drug trafficking business. Carron’s role was to prepare and package the cocaine into individual snap lock bags, ready for distribution. The applicant and Wong’s roles were similar, namely to deliver cocaine to customers. The applicant had PIN code access to the St Kilda premises.
The syndicate used the following system to arrange the ordering, purchasing and delivery of cocaine:
(a) Gallin had a customer list.
(b)A customer from that list would order a quantity of cocaine by sending a text message saying that they wanted to catch up or meet for a drink, or something to a similar effect. The text message would be sent to the business phone.
(c)The business phone was usually monitored by Gallin, but was occasionally monitored by either Carron or Wong. The phone was never monitored by the applicant.
(d)The person monitoring the business phone would confirm receipt of the order by sending a text message from the business phone to the customer, saying ‘My guy is coming to see you — he’ll contact you’.
(e)The customer would usually send a text message to the business phone giving an address for delivery of the cocaine.
(f)The order would then be relayed to the applicant or Wong by text message from the business phone to the applicant’s phone or Wong’s phone, depending who was on delivery duty.
(g)Either the applicant or Wong would confirm receipt of the order by sending a text message to the business phone.
(h)The person monitoring the business phone would then confirm that the cocaine would be delivered by sending a text message from the business phone to the customer’s phone.
(i)The applicant or Wong would then drive to the address provided and deliver the cocaine, receiving payment.
(j)The syndicate’s drug trafficking business operated seven days a week.
(k)The applicant and Wong delivered cocaine to customers according to a roster. Both worked Fridays to Sundays, alternating shifts Monday to Thursday. Sometimes the applicant and Wong would swap shifts with each other.
The syndicate had a referral process whereby existing customers vouched for new customers.
The numbers of the business phone and the applicant’s phone were changed on 4 September 2015. The applicant’s phone number was changed again on 6 October 2015, and on 18 November 2015 the business phone number was changed. The applicant’s phone number was changed again on 20 November 2015. The judge noted that ‘[n]o doubt all of these changes in phone numbers was in a bid to avoid detection by police’.[6]
[6]Ibid [12].
Police intercepted calls and text messages to and from the business phone, the applicant’s phone and Wong’s phone, pursuant to legally obtained warrants.
By means of covert listening and optical devices, police observed the following process in relation to the preparation, packaging and delivery of cocaine to customers:
(a) Carron and Gallin prepared the cocaine on the dining room table.
(b)They mixed the cocaine with a cutting agent such as Creatine, then put the mixture into individual deal bags.
(c)The completed deal bags were stored in either the range hood or the coffee machine filter in the kitchen.
(d)The applicant would collect the deal bags he was to deliver from the supply in the coffee machine filter, and Wong would collect his deal bags for delivery from the range hood.
The syndicate used two different types of snap lock bags hidden within the coffee machine and the range hood. The snap lock bags had either a black scorpion motif or a blue stars motif on them. On 22 October 2015, police covertly executed a search warrant at the St Kilda premises and found the following in the coffee machine:
(a)one bag containing 10 small bags with the blue stars motif containing cocaine, each weighing less than one gram;
(b)one bag containing one small bag with black scorpion motif containing cocaine, weighing less than one gram;
(c)one bag containing 10 small bags with black scorpion motif containing cocaine, weighing approximately 11 grams in total;
(d)one bag containing seven small bags with blue stars motif containing cocaine, weighing about six grams in total;
(e)one bag containing 10 small bags with black scorpion motif containing cocaine, weighing about nine grams in total; and
(f)one bag containing nine small bags with black scorpion motif containing cocaine, weighing about eight grams in total.
Police obtained samples from one small bag with blue stars motif which contained white powder and one small bag with black scorpion motif which contained white powder. Each sample tested positive for cocaine. One sample indicated 48 per cent purity while the other sample indicated 30 per cent purity.
The applicant was arrested on 24 November 2015. Telephone intercepts and stored communications from the business phone and the applicant’s phone showed that the applicant made 1,061 deliveries between 20 July 2015 and 5 October 2015. On the agreed position, each delivery involved a minimum of one deal bag and each deal bag contained 0.75 grams of cocaine mixed with another substance, amounting to a total quantity delivered of 795.75 grams. A further 31 deal bags, with a total weight of 23.8 grams, were found in the coffee machine and accepted by the applicant to be in his possession for sale.
The amount trafficked summed to a total of 819.5 grams of a mixture of cocaine and another substance, which was more than 1.6 times the applicable commercial quantity of 500 grams. The applicant sold a standard and premium product, and the purity of the product overall ranged from 24 per cent to 48 per cent.
Analysis
It must be said at once that, given the well organised and repetitive nature of the offending and the quantity of the drug involved, the sentence imposed by the judge on the applicant was very lenient. The issue in this application is whether, applying the principle of parity and having regard to the sentence imposed on the co-offender Carron, the applicant was entitled to even greater leniency than that extended by the judge. In our view he was not.
In order to explain why we have come to that conclusion it is necessary to first refer to the content of the principle, say something about the sentence imposed on the co-offender, Carron, and finally return to the position of the applicant.
Applicable principles
In an appeal against sentence, the principle of parity is engaged where there is a differential treatment between co-offenders that gives rise to a justifiable sense of grievance (objectively determined).[7] Different treatment, like discrimination generally, can take the form of treating the same things differently or in treating different circumstances in a way that does not pay due regard to the differences.
[7]Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ); R v Taudevin [1996] 2 VR 402, 403 (Hampel AJA), 404 (Callaway JA); Postiglione v The Queen (1997) 189 CLR 295, 304 (Dawson and Gaudron JJ), 323 (Gummow J), 338–40 (Kirby J); Green v The Queen (2011) 244 CLR 462, 474–5 [31] (French CJ, Heydon, Crennan, Kiefel and Bell JJ).
The rationale for overturning a sentence on the basis of a marked and inexplicable discrepancy with a sentence imposed on a co-offender was explained by Mason J in Lowe v The Queen (‘Lowe’) as follows:
Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[8]
[8](1984) 154 CLR 606, 610–11.
The requirement of equal justice is fundamental and, as Vincent JA (Brooking and Phillips JJA agreeing) said in R v Djukic (‘Djukic’):
It is regarded as inherently unjust to discriminate, in the sentences imposed upon them, between equally culpable and otherwise equally positioned co-offenders. It is also accepted that there is no justice in the imposition of the same penalty upon persons who are not equal in these senses.[9]
However, the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA went on to observe in Djukic:
Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[10]
[9][2001] VSCA 226, [25].
[10]Ibid.
The question to be addressed when a complaint of disparity is raised is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between co-offenders in the way he or she did.[11] Difficulties in applying the principle become acute where the first sentence is considered to be very lenient or even manifestly inadequate. The quandary faced by a sentencing court confronted with an inadequate sentence on a co-accused was considered by this Court in Taleb v The Queen (‘Taleb’).[12] After referring to a number of authorities, the Court summarised the principle by saying:
The avoidance of an unjustifiable disparity between the sentence imposed on an appellant and a co-offender may require the reduction of the appellant’s sentence to a level which might otherwise be regarded as at the bottom end of the range, but not to the point where the offender’s sentence is wholly inappropriate or outside the range.[13]
[11]Dickman v The Queen [No 2] [2017] VSCA 351, [49] (Whelan JA), citing McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA); R v Wolfe [2008] VSCA 284, [9] (Maxwell P, Weinberg JA and Hargrave AJA agreeing).
[12](2014) 42 VR 666.
[13]Ibid 677 [48] (Neave and Weinberg JJA).
To the same effect, Nettle and Redlich JJA (Priest JA agreeing) in Director of Public Prosecutions (Cth) v Peng (‘Peng’) said:
The approach required where the co-offender’s sentence is inappropriately low is different. A sentence that is manifestly inadequate will require that a co-offender’s sentence be placed toward the lower end of the range of sentences that are available. But a sentence that is viewed as excessively lenient cannot justify the reduction of a co-offender’s sentence to one that is inappropriately low.[14]
[14][2014] VSCA 128, [36].
That approach has been applied in a number of cases.[15]
[15]Dunn (a pseudonym) v The Queen [2017] VSCA 371, [93] (Maxwell P, Beach and McLeish JJA); Gianello v The Queen [2015] VSCA 205, [30] (Beach JA, Whelan JA agreeing); Khoa v The Queen [2015] VSCA 80, [43] (Weinberg and Kyrou JJA).
Counsel for the applicant relied on other decisions of this Court in which it has been held that justice between co-offenders must prevail even where the comparator sentence is viewed as ‘far too low’[16] or even as manifestly inadequate.[17] It is unnecessary for present purposes to investigate the extent of any divergence between the authorities. It is clear, on the basis of the decisions in Taleb and Peng, that parity does not require the reduction of a sentence to an inappropriately low level. This conclusion reflects what was said by the High Court in Green v The Queen (‘Green’):
There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co‑offender’s sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, ‘an affront to the proper administration of justice’. Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.[18]
[16]Bernarth v The Queen [2014] VSCA 195, [77] (Priest and Beach JJA).
[17]Ashweirth v The Queen [2015] VSCA 224, [9] (Priest and Beach JJA).
[18](2011) 244 CLR 462, 475–6 [33] (French CJ, Crennan and Kiefel JJ) (second emphasis added, citations omitted).
It is unnecessary to decide whether a judge might be permitted — for reasons of parity — to impose a sentence which, viewed alone, would be manifestly inadequate. Green stands as authority for the proposition that it is not an error for a judge to decline to take that course. That is, where it is open to a judge to conclude that any greater leniency would render the sentence manifestly inadequate, it is not an error for the judge to decline to impose such a sentence. We would add that to refrain from reducing a sentence beyond the point that is manifestly inadequate avoids the invidious perception of the perpetuation, rather than the correction, of error.[19]
Co-offender Christopher Carron[20]
[19]R v Ismunandar (2002) 136 A Crim R 206, 220 [38] (Heydon JA, Sully and Levine JJ).
[20]This description of the circumstances of the offending has been drawn from DPP v Carron and Gallin [2018] VCC 1469.
The applicant’s proposed ground of appeal refers to the sentence imposed on Carron, who was sentenced to a 5 year CCO for one charge of trafficking in a drug of dependence (cocaine) in a commercial quantity.
Carron was sentenced by a different judge, Judge Gaynor. In that case, the agreed amount of cocaine was 900 grams mixed with another substance. The maximum penalty for traffic in a commercial quantity of cocaine is 25 years’ imprisonment.
Her Honour noted that between 8 August and 24 November 2015, the syndicate conducted 2,402 transactions in which cocaine was delivered to customers. When the police entered the St Kilda premises pursuant to a warrant on 24 November 2015, Carron was in the process of preparing cocaine by putting it into individual deal bags ready for distribution.
Carron was 33 years old at the time of sentence, the second of two children. He grew up in affluent circumstances, although he had a distant relationship with his father. His mother suffered from significant mental illness and alcoholism which induced a number of suicide attempts. Following her separation from the Carron’s father when Carron was in Year 8, she was admitted as an inpatient to a psychiatric hospital for a month.
After his parents’ separation, Carron remained with his mother. During this period she made recurrent suicide attempts, often requiring hospitalisation and leaving Carron and his sister to take on the responsibilities of the household as teenagers. Carron or his sister would come home to find their mother having attempted suicide by various means, requiring them to call an ambulance or psychiatrist.
Carron completed Year 12 but his VCE marks were not sufficient to gain entry into university. He undertook a course at TAFE and found work at a stockbroking firm. He studied part-time and obtained a degree in economics and finance as well as a Masters of Applied Finance. He ultimately undertook full-time employment in the stockbroking field. He suffers from poor concentration and, by the time of sentence, had been diagnosed with ADHD.
The judge noted that Carron was introduced to cocaine when he was 19 years old and over the next five years his consumption increased to between four and eight grams each week. Faced with financial problems associated with his drug taking and managing his mother’s financial affairs, he took up a role within the syndicate primarily, it was said, to have access to cocaine at a cheap rate to feed his addiction.
After being remanded in custody for a short period of time, Carron was released on bail and spent six months at a residential rehabilitation centre. The evidence showed that he had taken significant positive steps towards rehabilitation and that he had been suffering from a severe dependence on cocaine, ADHD and complex post-traumatic stress disorder.
The judge noted the extreme seriousness of Carron’s offending and that Mr Wong had been sentenced to 7 years’ imprisonment after pleading guilty to a charge of trafficking cocaine in a large commercial quantity. The judge distinguished Carron from Wong on the basis that the former had pleaded to a charge of trafficking in a commercial quantity not a large commercial quantity. Her Honour also highlighted the differences in their respective roles, including the duration of involvement and motivation for participating in the syndicate. Most importantly, the judge distinguished Carron by reference to his lengthy, intensive and successful rehabilitation.
It is clear from Judge Gaynor’s reasons for sentence that she regarded the case as exceptional. The judge said:
In my view, however, yours is a singular case marked by exceptional rehabilitation and enhancement of your rehabilitative prospects such that it is one of those very rare cases where a non-custodial sentence may be imposed.[21]
[21]DPP v Carron and Gallin [2018] VCC 1469, [113].
The judge accepted that Carron’s offending had been entirely motivated by drug addiction. In remarks directed to Carron she added:
You do need to understand, sir, that your offending was extremely serious. If you had not put in the incredibly extensive efforts that you have, if you had not turned up drug free, if you had not been able to turn up 180 clean urine screens, you too would have been looking at gaol. But this is an exceptional situation. Ordinarily I would not hesitate to gaol you.[22]
[22]Ibid [118].
As already noted, Carron was placed on a CCO for 5 years with 600 hours of unpaid community work.
The position of the applicant
Judge Cannon’s reasons for sentence in respect of the applicant are detailed and carefully drawn. Her Honour identified those facts that highlighted the applicant’s level of involvement in the operation, including working eight hour shifts, alternating shifts with Wong, having access to the drug house and being entrusted with the money obtained from sales.[23]
[23]Reasons for sentence [31]–[32].
The judge set out the applicant’s personal history and circumstances, and his spiral into drug use. The applicant was 36 years old at the time of the offending and 39 when he was sentenced. He had a close relationship with his mother and a ‘love-hate’ relationship with his father, who made it clear that the applicant would have to assume responsibility for the family once he reached a certain age. The applicant completed Year 12. He commenced tertiary studies, but abandoned them to look after the family business.
The applicant began using drugs when he was 21 years old. When his father died five years later, the applicant turned to drugs in order to cope with his grief. At the time of the offending he was using 15 to 20 grams of cocaine per week.
Addressing the import of the sentence imposed on Carron, the judge recorded that the applicant had pleaded guilty to a lesser offence than Carron. Relatedly, the total quantity of drug trafficked by the applicant was less. The judge gave very close attention to Judge Gaynor’s reasons for sentence in respect of Carron.
Relevantly, the applicant had no prior convictions and Carron had no relevant prior convictions. The judge found that the applicant’s background was more favourable than Carron’s, although both had struggled with substance abuse. The judge noted that Carron had been motivated to offend in order to feed his cocaine addiction, whereas the applicant’s motivation comprised a combination of obtaining drugs and making money.
Ultimately, having considered at length the principles relevant to parity and the comparative position of the applicant and Carron, the judge concluded that she could not do justice to the nature and gravity of the offending by imposing a similar sentence to that imposed on Carron. Her Honour said:
At the end of the day, Mr Topal, I have had regard to the sentences imposed in respect of each of your co-offenders and considered the various differences in their cases, compared with yours. The only co-offender not sentenced to an immediate gaol term with a non-parole period was Mr Carron. Mr Carron’s case was said to be a rare and exceptional one for offending of the kind in which he engaged. In those circumstances, although I have had regard to Carron’s sentence, which was a most lenient one, I am afraid that I cannot do justice to the nature and gravity of your offending by imposing a similar sentence upon you. I have had as much regard as the law permits to the principle of parity in your case, but I cannot impose a sentence upon you which I regard as inadequate in respect of a most serious example of trafficking simpliciter. In my view if I were to give full effect to parity insofar as Carron’s sentence is concerned, the sentence that I would impose, a Community Corrections Order, would be manifestly inadequate in your case, and would be to pay insufficient regard to the nature and gravity of your offending, and to my instinctive synthesis in respect of your case.[24]
[24]Ibid [181] (emphasis in original).
The judge went on to say that she had reduced the sentence that she would otherwise have imposed in view of ‘the most merciful treatment’ of Carron.[25] Her Honour made clear, however, that any lesser sentence would be manifestly inadequate and could not be justified. For the reasons given earlier, there was no error in that approach.
[25]Ibid [182].
In oral submissions, counsel for the applicant emphasised that the applicant had a period of incarceration on remand of 253 days and, when released on bail, was subject to very onerous conditions. He submitted that these factors served to punish the applicant and must be taken into account in formulating any appropriate sentence. It was submitted that having regard to those matters and the sentence of the co-offender it was well open to the sentencing judge to impose a sentence reflecting time served or at least a term of imprisonment less than that imposed by the judge. In other words, the judge erred in concluding that the sentence she imposed was the least burdensome while still being consistent with proportionate sentencing.
We do not accept that submission.
The evidence as a whole demonstrated that the applicant was blighted by a significant drug addiction and that, with treatment, he had developed a sense of responsibility and insight becoming drug free and engaging extensively in appropriate therapy. He has demonstrated stable ongoing employment, secure accommodation within the family home and ongoing family support. He has shown the capacity to improve his life as reflected in ongoing tertiary study and work ethic.
These positive matters meant, as the judge recorded, that it was necessary to place minimal weight on specific deterrence and protection of the community. Given the nature of the offending, however, the judge correctly placed strong weight on general deterrence in a bid to deter others from offending in the same way.
As this Court has said on many occasions, general deterrence is an important sentencing consideration in relation to drug trafficking charges.[26] It is necessary for the sentence to impose a counterweight to the apparent financial rewards that are associated with large-scale drug trafficking. It is also important that the sentence reflects the serious harm that drug trafficking causes within the community and the high maximum sentences that parliaments across Australia have set for drug trafficking.
[26]See Gregory (a pseudonym) v The Queen [2017] VSCA 151; Dawid v DPP [2013] VSCA 64, [35] (Kaye AJA, Redlich and Whelan JJA agreeing).
In our view, having regard to the seriousness of the offending, the sentence imposed by the judge was extremely lenient. The offending was sophisticated, involved large quantities of drugs and was a substantial commercial undertaking. The role played by the applicant was deliberate and important to the operation of the illicit business. He had direct contact with the ultimate consumers and his work was extensive, repetitive and significant. The offending demanded an immediate term of imprisonment. The antecedents and personal circumstances of the applicant warranted a reduction in sentence that might otherwise have been imposed.
The judge concluded that, despite the strong downwards pull of the Carron sentence, it was not possible to extend any greater leniency to the applicant than the term she proposed. To the extent that this resulted in a difference between the sentences imposed on the applicant and Carron, it was well open to the judge to conclude that the differentiation was necessary in order to avoid imposing on the applicant an inadequate sentence.
There was no error in either methodology or outcome. We would dismiss the application for leave to appeal against sentence.
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