Trajkovski v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0890

BORIS TRAJKOVSKI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA and HARGRAVE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 May 2011
DATE OF JUDGMENT	17 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 170
JUDGMENT APPEALED FROM	R v Trajkovski & Waters (Unreported, County Court of Victoria, Judge Howard, 30 October 2009)

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CRIMINAL LAW – Appeal – Sentence – Trafficking large commercial quantity and commercial quantity methylamphetamine; Giretti trafficking MDMA, cannabis, commercial quantity methylamphetamine; possessing unregistered handgun – Sentenced to total effective sentence of 17 years with non-parole period of 12 years – Whether judge erred in first grading level of offending and then fitting into band with pre-determined sentencing range – Whether judge thereby engaged in two-tier sentencing – Whether judge erred by treating particular matters as aggravating features of possession of unregistered handgun – Whether judge erred in finding increased incidence of drug trafficking – Whether judge erred in observation that offending by applicant ‘so much the worse’ because of previous drug use – Whether low purity of drug relevant to sentence – Manifest excess – Appeal allowed – Applicant re-sentenced

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Weinberg JA. I agree with them. I think that more yet might be said about the subject-matter of ground 7. But this is not the occasion to do so.

WEINBERG JA:

The applicant, Boris Trajkovski, was presented in the County Court at Melbourne on a series of counts involving trafficking in a drug of dependence. He initially pleaded guilty to two offences (counts 4 and 9), and not guilty to three others (counts 1, 3, and 8). He had earlier pleaded guilty, on a separate presentment, to one count of possessing an unregistered handgun (count 11).

Ultimately, and during the course of the trial, the applicant pleaded guilty to counts 3 and 8 as well. That left only count 1 to be resolved. This was a Giretti[1] count of trafficking methylamphetamine in a large commercial quantity. The applicant was acquitted on that count, but convicted of the alternative count of trafficking in a commercial quantity.
[1]R v Giretti (1986) 24 A Crim R 112.

The various offences to which the applicant pleaded guilty, or of which he was convicted, are set out in the following table.

Count Offence Maximum sentence Sentence Cumulation

1 Traffick a commercial quantity of methylamphetamine between 26 August 2005 and 28 December 2005 25 years’ imprisonment 7 years’ imprisonment 2 years and 6 months

3 Traffick a large commercial quantity of methylamphetamine on or about 29 December 2005 Life imprisonment 11 years’ imprisonment Base

4 Traffick a commercial quantity of methylamphetamine on or about 29 December 2005 25 years’ imprisonment 5 years’ imprisonment 18 months

8 Traffick MDMA between 26 September 2005 and 29 December 2005 15 years’ imprisonment 4 years’ imprisonment 9 months

Count Offence Maximum sentence Sentence Cumulation

9 Traffick cannabis between 11 August 2005 and 18 January 2006 15 years’ imprisonment 12 months’ imprisonment 6 months

11 Possess unregistered handgun 7 years’ imprisonment 2 years’ imprisonment 9 months

The total effective sentence was 17 years’ imprisonment.

The judge fixed a non-parole period of 12 years.

His Honour stated pursuant to s 6AA of the Sentencing Act 1991 that, but for the applicant’s pleas of guilty, he would have imposed a total effective sentence of something in the order of 21 years’ imprisonment with a non-parole period of 16 years.

The grounds of appeal

The applicant seeks leave to appeal against sentence. He relied initially upon the following grounds:

1. The total effective sentence, individual sentences and non-parole period are manifestly excessive.
2. The learned sentencing judge erred by failing properly to apply the sentencing principle of totality.
3. The learned sentencing judge erred by doubly punishing the applicant.
4. The learned sentencing judge erred by finding aggravating features of the applicant’s commission of Count [11] that were not open to be so described, in particular, that the gun “could have been resorted to in relation to... [the applicant’s] ... drug trafficking activity, if necessary”, that “there is no suggestion that there would have been any difficulty for... [the applicant]… in obtaining ammunition for this high-calibre weapon” and that in imposing sentence it was relevant to have regard to the trade in such weapons by “firearms traffickers”…
5. The learned sentencing judge erred in finding that “over many years now there has been a continual and alarming increase in the incidence of drug trafficking and the attendant quantities of drugs of dependence, which are being trafficked in our society”…
6. The learned sentencing judge erred by finding that “to the extent you understood their... [the eventual drug users]... disabilities because of your own drug use, so much the worse is your offending”…

During the course of oral submissions the applicant sought, and was granted, leave to add a seventh ground which was expressed in broadly the following terms:

7. The learned trial judge erred by having resort to two-tier sentencing.

Circumstances surrounding the offending
Count 1

This was, as I have said, a Giretti count. Between 26 August 2005 and 28 December 2005, the applicant conducted a business of trafficking in methylamphetamine. He did this by either possessing the drug for sale, or offering or agreeing to sell it.

The evidence against the applicant consisted largely of some 22 intercepted telephone conversations. If the Crown’s interpretation was accepted, those conversations demonstrated that the applicant had trafficked some 1.475 kilograms of methylamphetamine in a mixture.

As part of its case, the Crown called as a witness Stephen Murphy, an accomplice. He claimed that the applicant had trafficked in 4.54 kilograms of methylamphetamine over a six to eight week period in the second half of 2005. Had the jury accepted Murphy’s evidence, the applicant would undoubtedly have been convicted on the count as framed, namely trafficking methylamphetamine in a large commercial quantity. His acquittal on that count meant that Murphy’s evidence must have been rejected.

Accordingly, the sentencing judge sentenced the applicant on the alternative to count 1, on the basis that he had trafficked something of the order of 1.475 kilograms of methylamphetamine mix. This was above what was then the commercial threshold of not less than 1.25 kilograms. The street level price for this amount of drugs was agreed to be in the range of $123,310 to $155,760. The wholesale price would, however, have been much lower.

Count 3

This was the most serious of the counts of trafficking for which the applicant was sentenced. It was described as the ‘bucket’ count. On 29 December 2005, following information gained from telephone intercepts, police apprehended the applicant whilst he was driving. He was in possession of 3.895 kilograms of methylamphetamine mix which was located in a plastic bucket in the vehicle. He had earlier removed some 29.4 grams of that mix from the bucket, which he had put in a folder for his own use. It followed that he was found to be in possession of a total of 3.924 kilograms of methylamphetamine mix.

It should be noted that the actual amount of methylamphetamine contained in the mix was minuscule. The level of purity was approximately 0.05 per cent. That meant that he was in possession of only approximately 1.96 grams of pure methylamphetamine.

The judge found, in effect, that the applicant had played a significant role in the manufacture and distribution of the methylamphetamine mix. For example, he had procured what the various offenders had described as the ‘genie in a bottle’. This referred to a chemical pre-curser which the applicant had provided to his co-offenders to assist in the manufacture of the drug. He had monitored the ‘genie’, facilitating its use in the production process and helping to resolve technical difficulties in the manufacture of the drug. This assistance included providing advice as to how to dry the powder prior to pressing pills from it.

On 29 December 2005, the applicant arranged to obtain a pill-press so that the powder could be made up into approximately 14,000 tablets. He negotiated with John Waters, another principal in this drug trafficking operation, a payment of between $12,000 and $14,000 for the person who would carry out the job of pressing the pills. He also discussed with Waters stamping the individual tablets with a special logo, which would make it easier for them to be sold. In his Honour’s view, it was obvious that the applicant wanted to distribute the drug in advance of New Year’s Eve, where it would be sold for about $13 per tablet, and produce some $182,000 gross profit. The applicant had then arranged to take the methylamphetamine mix to Waters’ home so that he could pass it on to whoever would be pressing the pills. That was what the applicant was in fact doing when police arrested him.

Count 4

Following the applicant’s arrest on 29 December 2005, police searched his home. They located five separate bags containing methylamphetamine in a mixture. The weight of the mixture was about 839 grams. The purity of the drug was relatively high, ranging from 12 to 40 per cent. That meant that there was a total of about 283 grams of pure methylamphetamine.

But for the high degree of purity, the amount of the drug in the applicant’s possession would not have been a ‘commercial quantity’. On this occasion, and unlike its treatment of count 3, the Crown chose to focus upon the 283 grams of pure methylamphetamine contained within the mix, that being some 33 grams above the 250 grams commercial threshold then applicable for pure methylamphetamine.

The drugs located at the applicant’s home were stored in his kitchen freezer, and in a small fridge in a carport area. The judge accepted that they were kept as wholesale stock for sale to others, and that they were the residue of the drugs sold throughout the Giretti trafficking under count 1.

Count 8

The applicant conducted a second Giretti business of trafficking, this time in MDMA (commonly known as ‘ecstasy’). He did so by selling some 1,900 tablets between 26 September 2005 and 18 December 2005.

The total weight of the MDMA sold was 475 grams. This was just short of the threshold for the commercial quantity of 500 grams.

Count 9

The applicant conducted a third Giretti business of trafficking. This consisted of his having, on two occasions, purchased cannabis from Waters with a view to its being re-sold for profit. The total amount of cannabis acquired was 784 grams. The purchase price was somewhere between $4,284 and $4,536.

The judge noted that the amount of cannabis trafficked was just over three times the traffickable quantity of that drug, which was not less than 250 grams. He further noted that the threshold for commercial quantity of cannabis was not less than 25 kilograms.

Count 11

When the applicant’s home was searched on 29 December 2005, police discovered an unregistered Colt .45 automatic pistol in an unlocked chest of drawers in the main bedroom. The weapon was unloaded. No ammunition of any kind was found. The applicant was not the holder of any relevant firearms licence at the time, and was therefore not authorised to possess a handgun.

The judge noted that it was not alleged that the weapon had any connection with any of the applicant’s drug trafficking activities. Moreover, the applicant was not a prohibited person at the time.

The applicant’s background

The judge observed that the applicant was aged 39 at the time of his offending, and 43 when he came to be sentenced. He was born in Macedonia and came to this country with his parents when he was very young. He was one of three brothers. He was raised in a loving, caring and supportive family environment. His father died in 2006. His mother was in her 70s and in frail health. His younger brother lived with the applicant’s mother. Sadly, that brother suffered from schizophrenia. The applicant had assisted in caring for him.

The applicant was educated to year 12 level. He then began an accounting course. He gave that up after a few months and obtained employment as a clerk. Ultimately, he established his own business as a car wholesaler. Up until six to 12 months before this offending, he had been gainfully employed throughout his entire adult life.

The applicant married in 1991. He had two sons who were, at the time of sentencing, aged 13 and 15. He was said to have been a good husband and a devoted father. His wife and children had continued to support him whilst he was in prison.

Evidence of the applicant’s good character was led on the plea. It seems that he had led an almost blameless life until about 2005 when he began to use amphetamine on a regular basis. He also occasionally used MDMA. At about that time, his car business was faltering. He spent a lot of time renovating his investment property which was next door to his home. It was said that he initially began selling amphetamines and other drugs simply in order to supply his own habit. It got to a stage where he was using up to 3 grams of drugs per day.

The applicant had no prior convictions of any significance. Nor had he been charged with, or convicted of, any offences after his arrest for these matters. It was said on the plea that since these offences he had ceased to use drugs, having finally understood that they had wrecked his life.

There was evidence before his Honour of remorse. Jeffrey Cummins, a consultant forensic psychologist, expressed the view that the applicant may well have suffered from long-term depression, and could well have drifted into drug use as a means of self-prescribed medication. He said that the applicant presented as being moderately to severely depressed, and recommended that he receive continuing treatment. In Mr Cummins’ opinion, there was no obvious impediment to the applicant’s ongoing rehabilitation.

The judge’s findings

The judge accepted that there were a number of mitigating circumstances present in this case. These included the applicant’s stable and supportive family environment, excellent work record, and lack of prior convictions.

The judge also gave the applicant credit for his pleas of guilty to counts 4 and 9 on the current presentment, and count 11 on the separate presentment. Those pleas, though not entered at the earliest practical opportunity, were entered at the outset of the trial, and warranted a significant discount. His Honour also gave the applicant credit for his plea of guilty on count 8, trafficking in MDMA, noting that it had been entered after the Crown had changed its case from trafficking in a commercial quantity to trafficking simpliciter.

With regard to count 3, the judge observed that the guilty plea had been entered late, only after the Crown had presented all of its evidence and well into the applicant’s cross-examination. In his Honour’s view, the plea on that count had only marginal utilitarian benefit.

The judge noted that it had not been suggested that any of the pleas of guilty were themselves indicative of remorse. Although treated as mitigating factors, it seems they were accorded only limited weight.

Nonetheless, his Honour was prepared to say that the applicant had now developed an important understanding as to the futility of using drugs. He concluded that the applicant had reasonable prospects of rehabilitation.

The reasons for sentence

As count 3 was to be the base sentence, the applicant had to be sentenced as a serious drug offender on, first, the alternative to count 1 and, secondly, on count 4. That brought into operation the provisions of ss 6D, 6E and 6F of the Sentencing Act 1991.

However, the judge said that given the range of sentences generally available, he did not consider it necessary to impose disproportionate sentences on either count 1 or count 4 in order to achieve the goal of protection of the community. Moreover, the principle of totality required that the degree of cumulation be modest. The applicant was to be sentenced as a serious drug offender on those counts. However, it was unnecessary in the particular circumstances of this case that these sentences be served fully cumulatively upon the other sentences imposed.

Having made these findings in relation to the applicant, the judge set out what he described as some ‘general sentencing considerations’. He referred, in that context, to two decisions of this Court, delivered some ten years apart, in which the gravity of offending of this kind had been emphasised.[2] His Honour then said:

Regrettably, over many years now there has been a continual and alarming increase in the incidence of drug trafficking and the attendant quantities of drugs of dependence, which are trafficked in our society. This has often been associated with an apparent arrogance on the part of offenders as to the prospects of detection and a frightening disregard for the sentences handed down and the denunciation of the courts. Such are the profits to be made in this insidious business. Such are the risks which offenders like you are prepared to take. Many in our community question the disturbing nature of this spiralling phenomena and ask whether there are not better ways to deal with the problem, particularly for those sad persons addicted to drugs and the debilitating and dysfunctional lifestyle which accompanies their addiction. However, those like you, who are the “Mr Bigs” operating at the top of the tree in sophisticated trafficking schemes designed to make massive profits, must know that if they are tempted to act in this way, the courts will impose severe punishment upon them.[3]

[2]R v Berisha [1999] VSCA 112; and DPP (Vic) v McInnes [2009] VSCA 144.

[3]R v Trajkovski & Waters (Unreported, County Court of Victoria, Judge Howard, 30 October 2009) (‘Sentencing Remarks’), [228].

The judge characterised the applicant as a principal in the drug trade, as distinct from one of the ‘little fish’ who often came before the courts. He noted that the applicant’s lack of prior convictions carried less weight in relation to offending of this nature than it might in relation to other offences.

The judge then noted that the applicant had not trafficked solely in order to support his addiction, but rather for reasons of greed. He said:

You knew exactly what you were doing, particularly that the drugs you were selling would eventually be on-sold to consumers and addicts at a street level. To the extent you understood their disabilities because of you own drug use, so much the worse is your offending.[4]

[4]Ibid [231].

His Honour then sentenced the applicant as previously indicated.

Consideration

I propose to deal first with ground 7, which complains that the judge went about the sentencing process in a two-tier manner. In order to understand what lies behind that ground, some additional information is necessary.

The applicant was jointly presented and tried with Waters. When it came time to deal with their respective pleas, the judge was concerned to receive such assistance from the Crown as could properly be provided.

In accordance with the principles laid down by this Court in R v MacNeil-Brown; R v Piggott,[5] the Crown made submissions to the judge as to the applicable range in relation to each offender. Of course, a submission on range of that kind must take into account all of the matters which properly go in mitigation of penalty, at least to the extent that they are known to the Crown. Such a submission should never be more than an ‘approximation or an indication’.[6]
[5](2008) 20 VR 677.
[6]Ibid 698 (Maxwell P, Vincent and Redlich JJA).

The complicating factor in this case was that the Crown also submitted to the judge that any sentence to be imposed on count 1 should have been unconstrained by current sentencing practices.[7] In that regard, his Honour referred in his Sentencing Remarks to the observations of this Court in Director of Public Prosecutions v CPD[8] and Director of Public Prosecutions v DDJ.[9]
[7]The reason why this argument was confined to count 1 was because the applicant had pleaded guilty to all other counts for which he was sentenced. It would have been quite wrong, in those circumstances, to embark upon such an inquiry when the applicant may have been influenced in his decision to plead guilty by what was known of current sentencing practice at that time.
[8](2009) 22 VR 533, [69] and[74].
[9](2009) 22 VR 444, [65] and [70].

The Crown also submitted that the applicant’s offending in relation to count 1, namely Giretti trafficking in a commercial quantity, should be categorised at a particular level to which could be attributed a range of punishment. That range was described in a document marked ‘Exhibit F’ on the plea. His Honour referred to that exhibit in footnote 10 of his Sentencing Remarks.

The Crown’s position, as summarised in that footnote, was that trafficking in a commercial quantity of a drug of dependence could be characterised as falling into one of four distinct categories:

·           low level – three to seven years;
·           mid level – eight to 14 years;
·           high level – 15 to 20 years; and
·           worst example – 25 years.

The Crown further submitted that the applicant’s conduct in relation to count 1 should be characterised as ‘mid level commercial trafficking’ which, on the Crown’s reckoning, would result in a range of eight to 14 years’ imprisonment. The applicant’s counsel did not demur from the description ‘mid level’, but did not otherwise support the Crown’s submission.

The judge considered that both parties were wrong to characterise the applicant’s trafficking, on count 1, as ‘mid level’. His Honour noted that the amount of 1.475 kilograms of methylamphetamine mix was only 225 grams, or 18 per cent, over the threshold of 1.25 kilograms for a commercial quantity. Accordingly, he concluded that the applicant had trafficked a ‘low commercial quantity’ rather than at the mid level.

In justifying that conclusion, his Honour explained:

Dividing the commercial quantity range of 1.25 kg (ie the difference between 1.25 kg and 2.50 kg) in three roughly equal parts means the relevant level of trafficking within the commercial range for amphetamine [sic] mix would be – low: 1.25 kg – 1.67 kg; mid: 1.68 kg – 2.09 kg; and high: 2.10 kg – 2.50 kg.[10]

[10]Sentencing Remarks, footnote 12 at [18].

His Honour accepted the Crown’s submission that it was appropriate to characterise trafficking in drugs as falling within the four general categories postulated. However, he said that he was unable to understand the basis upon which the Crown had arrived at the sentencing ranges put forward. The judge said:

Using round figures, I would have thought the better categorisation was: low level: up to 8½ years; mid level: 8½ to 16½ years; and high level: 16½ to 25 years; with the maximum of 25 years reserved for the worst type of offence.[11]

[11]Ibid, footnote 10 at [16].

Having expressed that view, his Honour then said:

Without adopting any two-tier approach to sentencing, this means your trafficking falls to be considered in the range of up to 8½ years’ imprisonment.[12]

[12]Ibid [18].

The judge cross-referenced that observation to footnote 10 of his Sentencing Remarks, the substance of which I have summarised at [49] above.

The judge then considered, and rejected, the Crown’s submission that he should sentence the applicant on count 1 unconstrained by current sentencing practices. He did so on the basis that the Crown had failed to

refer me to, or seek to analyse, the details of any case primarily concerned with sentence for trafficking in a commercial quantity of drugs of dependence and comparable to the present case.[13]

[13]Ibid [26].

His Honour went on to say:

It was most regrettable that the prosecution failed to comply with the requirement to establish adequately current sentencing practices, as I had given the parties leave to put on written submission on this very question.[14]

[14]Ibid [27].

It is of interest to note that when his Honour came to sentence Waters, he accepted the Crown’s submission that current sentencing practices for trafficking in a large commercial quantity of MDMA were inadequate, and that he should therefore sentence Waters on that count unconstrained by such practices.

Ground 7 – Did the judge engage in two-tier sentencing?

Having considered the background to ground 7, I will now turn to the ground itself.

The applicant submitted that the judge’s approach of inviting submissions as to where on the scale of trafficking each count should lie, and what the range should be in respect of each point on that scale, amounted in substance to the adoption of two-tier sentencing.[15]
[15]Two-tier sentencing is sometimes described as a ‘staged’ or ‘sequential’ approach.

As stated previously, his Honour was conscious of the need to avoid adopting that approach. He said so in terms in the passage from his Sentencing Remarks that is set out at paragraph 54 above. Nonetheless, he immediately proceeded to say that the finding that the applicant had trafficked ‘a low commercial quantity’ rather than at the mid level meant that his offending fell ‘to be considered in the range of up to 8½ years’ imprisonment’.[16]
[16]Sentencing Remarks [18].

I consider, with respect, that this approach of first grading the level of actual offending, and then nominating a sentencing range for offences of that particular grade (as well as for offences of other grades), amounts in substance to two-tier sentencing. It is closely akin to nominating a ‘starting point’ from which the ultimate sentence will be imposed, and then moving to a consideration of aggravating and mitigating factors. If the judge’s approach in this case did not amount to two-tier sentencing, it certainly came very close to doing so.

In coming to that conclusion I am of course aware of the recent decision of this Court in Nguyen vThe Queen; Phommalysack v The Queen.[17] There, Maxwell P spoke approvingly of a series of propositions laid down by the New South Wales Court of Criminal Appeal in R v Nguyen; R v Pham[18] concerning sentencing for drug importation offences. Maxwell P also referred to Director of Public Prosecutions (Cth) v De La Rosa[19] where McClellan CJ at CL identified a series of ‘key reference points’ for sentencing, and for comparing sentences, in drug importation cases. In De La Rosa, McClellan CJ at CL had reviewed a series of sentencing decisions which he had grouped into various categories. These categories were said to be descriptive of current sentencing practice, and not to lay down quantitative sentencing guidelines.
[17][2011] VSCA 32 (‘Phommalysack’).
[18][2010] NSWCCA 238 (‘Nguyen and Pham’).
[19](2010) 273 ALR 324 (‘De La Rosa’).

Maxwell P then set out a table which contained four groups of offending and identified the range of sentences that had been imposed in relation to each group. He said that ‘[t]o have current sentencing practice distilled in this accessible fashion is of the greatest assistance’.[20] He added that the approach favoured in New South Wales, based on ‘clusters of key features’, would be conducive to consistency. He concluded[21] that even though the sentencing judge had posited a ‘but for’ sentence in relation to Nguyen, who was the other appellant in that case, the expression of such a sentence as a ‘starting-point’ in the context of s 21E of the Crimes Act 1914 (Cth) did not constitute impermissible ‘two-tier’ sentencing.[22]
[20]Nguyen vThe Queen; Phommalysack v The Queen [2011] VSCA 32, [37].
[21]In the context of the appeal by Phommalysack.
[22]As authority for this proposition, the President cited R v Tan (1995) 78 A Crim R 300, 303; R v Carey [1998] 4 VR 13; and FSv The Queen (2009) 198 A Crim R 383, 390.

Redlich JA was the only other member of the Court in Phommalysack. His Honour observed that when sentencing for Commonwealth offences, it was necessary to achieve a broad level of conformity with the sentences imposed for like offending in other States as well as Victoria.[23] He added that the cases cited during the course of the appeal had proved to be most instructive as informing the range of sentences applicable for drug offences of this nature. He said that utilising such comparable cases to inform the range of sentences available demonstrated that the sentences imposed in the instant case were not merely within the range of sentences that were reasonably open, but fell toward the lower end of that range.
[23]Nguyen vThe Queen; Phommalysack v The Queen [2011] VSCA 32, [104].

It is important to note that Redlich JA referred specifically to the factors identified by the New South Wales Court of Criminal Appeal in Nguyen and Pham as being potentially relevant in assessing the degree of criminality of an offender in offences of this nature. His Honour observed that ‘[v]arious applicable sentencing principles’ had also been discussed.[24] In any event, Redlich JA noted that these sentencing principles had not been the subject of argument or reference during the appeal in Phommalysack, and said he would therefore reserve for another occasion the question whether any of the matters enumerated by Maxwell P as relevant sentencing principles derived from Nguyen and Pham should be qualified, and if so to what extent.
[24]It is not altogether clear whether this reference by Redlich JA to ‘various applicable sentencing principles’ having been discussed, was intended to apply to Nguyen and Pham, or to Maxwell P’s summary of the principles distilled from that case in Phommalysack at [34].

Section 5(2)(b) of the Sentencing Act 1991 provides that in sentencing an offender, a court must have regard to ‘current sentencing practices’. How that task is to be performed is left unexplained. No doubt it may be useful, on occasion, to look at comparable cases. This is particularly so when those cases have been the subject of appellate review. Some limited assistance may be gained from sentencing statistics, though these must be viewed with caution.

It is often the case that judges categorise particular cases into various grades of offending. They speak, for example, of low level, mid level, and high level offending. They then go on to pigeon hole the case before them as falling within one or other of these general descriptions. This is no doubt done with a view to

promoting clarity, consistency and transparency in the sentencing process. This is not two-tier sentencing, and is in no way, of itself, objectionable.

It is a different matter, however, when a judge not only categorises a case in this way, but then proceeds to fit it within a series of ‘bands’, each of which has attached to it a pre-determined sentencing range. That is tantamount, in my respectful opinion, to using the categorisation of the facts as the basis for a ‘starting point’ in sentencing. In all but name, that is two-tier sentencing.

Of course, there is an ongoing debate amongst legal scholars, as well as among some judges, as to whether two-tier sentencing is preferable to ‘instinctive synthesis’[25] as a sentencing mechanism. However, the approach that has for many years commended itself to this Court, namely that of instinctive synthesis, remains, in my view, the only basis upon which sentencing should be carried out in this State.
[25]Instinctive synthesis is sometimes described as ‘intuitive synthesis’.

The High Court has spoken on this subject twice in recent years.

In Wong v The Queen,[26] the issue was whether the New South Wales Court of Criminal Appeal, which upheld a Crown appeal against sentence, had acted correctly in providing ‘guidelines’ for sentencing those knowingly involved in the importation of narcotics. Those guidelines attributed chief importance to the weight of the narcotic in fixing sentences for such offences.
[26](2001) 207 CLR 584 (‘Wong’).

The majority[27] held that the selection of weight of narcotic as the chief factor in fixing sentence represented a departure from fundamental sentencing principles. This was because it did not take account of the many conflicting and contradictory elements which bear upon sentencing an offender and did not address considerations of proportionality.[28]
[27]Gaudron, Gummow, Kirby and Hayne JJ.
[28]Gaudron, Gummow and Hayne JJ went further, and concluded that the publication of the guidelines was beyond jurisdiction because they were not directed at the quelling of the dispute which constituted the matter before the Court. The case was, of course, one involving the exercise of federal jurisdiction.

Gaudron, Gummow and Hayne JJ went on to say that

the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be “increment[s]” to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a “two-stage approach” to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say ‘may be’ quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.[29]

[29]Wong v The Queen (2001) 207 CLR 584, 611 (footnote omitted).

In Markarian v The Queen,[30] the High Court returned to the question of two-tier sentencing. The case involved a Crown appeal against sentence for various State drug offences. Notwithstanding what had been said in Wong, the New South Wales Court of Criminal Appeal had openly adopted a two-tier approach when it allowed the Crown appeal. In doing so, Hulme J (with whom Heydon JA and Carruthers AJ agreed) specifically eschewed instinctive synthesis, describing that process as the very antithesis of ‘reasoning to a conclusion‘. His Honour then nominated a ‘starting point’ of 15 years for the gravity of the offending. He did so essentially on the basis that the legislature could not have intended that, other things being equal, the maximum penalty (20 years) for supplying more than the threshold for a commercial quantity of heroin, namely 250 grams, should be less than the maximum penalty available for the lesser offence of supplying an indictable quantity (15 years). Having calculated the appropriate ‘starting point’, his Honour went on to deduct from it a discount for the plea of guilty and various other mitigating circumstances.
[30](2005) 228 CLR 357 (‘Markarian’).

The issue before the High Court was whether the New South Wales Court of Criminal Appeal had erred by adopting a staged approach to the calculation of the sentence. In particular, the question was whether that Court had erred by treating the maximum penalty for the lesser offence as the ‘starting point’ for that calculation.

In a joint judgment, Gleeson CJ, Gummow, Hayne and Callinan JJ, observed that it was

not useful to begin by asking a general question like was a “staged sentencing process” followed. That is not useful because the expression “staged sentencing process” may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender’s plea of guilty, or the offender’s assistance to authorities, of itself, reveals error.[31]

[31]Markarian v The Queen (2005) 228 CLR 357, 370.

Their Honours continued:

Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[32]

[32]Ibid 371 (footnote omitted).

Next, their Honours considered the relevance of the maximum sentence available in the sentencing process. They noted that the maximum sentence could, in some cases, be of great relevance, while in others that might not be so. Much would depend upon the particular offence, and the circumstances under which the maximum sentence had come to be fixed. Nonetheless, careful attention to maximum penalties would almost always be required, at the very least because they invite comparison between the worst possible case and the case before the Court at the time and because, taken and balanced with all other relevant factors, they provide a ‘yardstick’.

Their Honours then said:

That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.[33]

[33]Ibid 372 (footnote omitted).

Their Honours went on to say that Hulme J had placed too great an emphasis upon the quantity of the drug without regard to the facts of the case. A serious fallacy in his Honour’s reasoning had been to assume that any case involving more than 250 grams of heroin was likely to be a worse case than one involving only 250 grams or less. That could not be so.

The joint judgment then considered the appellant’s next submission, which was that sequential or two-tier approaches to sentencing, taking as their starting point the maximum penalty available, should be rejected in favour of a universal rule that sentencing courts must adopt a process of instinctive synthesis. Their Honours rejected that bald assertion. They said:

No universal rules can be stated in those terms. As was pointed out earlier, much turns on what is meant by a “sequential or two-tiered” approach and, likewise, the “process of instinctive synthesis” may wrongly be understood as denying the requirement that a sentencer give reasons for the sentence passed. So, too, identifying “instinctive synthesis” and “transparency” as antonyms in this debate misdescribes the area for debate.

In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong:
…
In R v Thomson, Spigelman CJ reviewed the state of the authorities in Australia that deal with the ‘two-stage’ approach of arriving at a sentence, in which an ‘objective’ sentence is first determined and then ‘adjusted’ by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle.
…

Following Wong benches of five judges in New South Wales in R v Sharma and R v Whyte and in South Australia in R v Place, have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime. On occasions intermediate courts of appeal have however refused to find error where a staged approach has been undertaken. In Place the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander, Martin and Gray JJ) although it rejected a staged approach in general, made it clear that a reduction of penalty for a plea of guilty should be identified. This approach, their Honours held, was in conformity with the relevant sentencing legislation of South Australia.
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.[34]

[34]Ibid 373–5 (footnotes omitted).

The net effect of their Honours’ reasoning seems to be that instinctive synthesis, when properly applied, is in no way incompatible with transparency and perfectly conducive to analytical rigour. In broad terms, two-tier sentencing is to be avoided. Instinctive synthesis is to be preferred. That is not to say that some form of arithmetic process can never be invoked. However, judges should be wary of relying too heavily upon raw numbers when engaged in sentencing offenders.

McHugh J went further. His Honour had this to say about two-tier sentencing:

The appellant was granted special leave to appeal in this case because he contended that the key question in the case was whether “two-tier sentencing” in contrast to “instinctive synthesis” is the correct approach to sentencing. In this case, the Court of Criminal Appeal applied the “two-tier” approach. It erred in doing so.
By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the “objective circumstances” of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.
The two-tier sentencer contends that using the instinctive synthesis is inimical to the judicial process and is an exercise of arbitrary judicial power, unchecked by the giving of reasons. The two-tier sentencer claims, as Hulme J did in this case, that, where the sentence is the result of an instinctive synthesis, it makes one “wonder whether figures have not just been plucked out of the air”. The instinctive synthesiser, on the other hand, contends that the two-tier sentencer mistakes an illusion of exactitude for the reality of sentencing because there is no method of sequential arithmetical reasoning that produces the correct sentence for any case. A sentence can only be the product of human judgment, based on all the facts of the case, the judge’s experience , the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes and authoritative judgments. The instinctive synthesiser asserts that sentencing is not an exercise in linear reasoning because the result of each step in the process is not the logical foundation for the next step in the process. Nor in practice can it be an exercise in multiple regression where one starts with particular coefficients and adds to or subtracts from their result by changing the weighting of each variable as new variables are added to the process. The circumstances of criminal cases are so various that they cannot be the subject of mathematical equations. Sociological variables do not easily lend themselves to mathematisation. Hence, when judges embark on a process that seeks to adjust incrementally or decrementally a hypothetical sentence, “they but illustrate the way in which the human mind tries, and vainly tries, to give to a particular subject matter a higher degree of definition than it will admit”, as Lord Porter said in another context.
In AB v The Queen, I gave my reasons for preferring the instinctive synthesis approach. In my view, the judge who purports to compile a benchmark sentence as a starting point inevitably gives undue – even decisive – weight to some only of the factors in the case. Furthermore, the judge falls into the error of determining that notional sentence by reference to a hypothetical crime derived from some only of the circumstances of the case. Instead of sentencing this accused for his or her criminality, the judge sentences the person for another crime and adjusts the notional sentence by reference to factors that are additional to the objective circumstances. Indeed, there are some offences – manslaughter is an example – where an attempt to fix a first-tier sentence by reference to the objective circumstances is meaningless. How can a judge possibly fix a first-tier or any sentence for the mother who has killed her newborn baby without taking into account her personal circumstances?
Moreover, by concentrating on the objective circumstances of a crime, the judge is giving effect, and ultimately greater weight, to the retributive or deterrent theory of sentencing. Indeed, the judgment of the Court of Criminal Appeal in this case makes it clear that the Court thought that the issues of retribution and deterrence were the dominant issues in the case. Consciously or unconsciously, the judge who commences with a notional sentence downplays the importance of mitigation, reformation and rehabilitation in the sentencing process. Cognitive psychology has long emphasised the difficulty that the human mind has in giving correct weightings to each of a number of variables. In particular, people frequently fail to distinguish between the strength of evidence and its relative weight in determining the outcome or prediction. As Griffin and Tversky have pointed out:
“The extensive experimental literature on judgment under uncertainty indicates that people do not combine strength and weight in accord with the rules of probability and statistics.”

The tendency of the mind is to seize on one or two variables – usually those with which the decision-maker is most familiar or which seem most cogent – and give that variable or those variables undue weight. Overconfidence – but sometimes underconfidence – in the significance of factors or the accuracy of the assessment is very common. The tendency to err must increase when particular circumstances are selected as the starting point for the decision and further factors are allowed to modify the starting point.
One fact that critics of the instinctive synthesis approach do not face up to – assuming they are aware of it – is that the first tier of the two-tier approach – unless it is the maximum sentence – is itself derived by an instinctive synthesis of the “objective circumstances” of the case. Or on another view of the two-tier approach, the first-tier sentence is the product of a value judgment that is proportionate to the offence. But as the Victorian Court of Criminal Appeal said in R v Young :
“What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence
… Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error. Upon what facts is the proportionate sentence to be fixed?”

(Emphasis in original.)
Analysing the process involved in two-tier sentencing reveals that its appearance of objectivity and unfolding reason is illusory. Whether the starting point is a sentence derived from the objective circumstances or a sentence proportionate to the offence, the correctness of the sentence always depends on the correctness of the value judgment involved in assessing the first-tier sentence. But even if the judge can correctly assess the first-tier sentence, the judge must still correctly assess the quantum of the increment or decrement for each factor in the process. With great respect to those who think the contrary, it would require a judge to have the statistical genius and mental agility of a Carl Friedrich Gauss to arrive at the correct sentence using these methods. As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen, mathematical increments and decrements to some pre-determined notional sentence are “apt to give rise to error”.[35]

[35]Ibid 377–380 (footnotes omitted).

Kirby J took a very different view. He strongly favoured the ‘two-stage approach’ that had been adopted below, and was highly critical of instinctive synthesis. He characterised the criticisms of two-tier sentencing levelled by Gaudron, Gummow and Hayne JJ in Wong as dicta. He described those criticisms as having been based upon a ‘highly unstable foundation of judicial reasoning’.[36]
[36]Ibid 401.

Recent authority on this issue in this Court is clear. In Russellv The Queen,[37] Kaye AJA was confronted with a submission that he regarded as having placed undue and excessive emphasis on the relevance and value of comparable cases and statistics. His Honour went on to say this about sentencing practice in this State:
[37][2011] VSCA 147.

At best, what might be described as ‘current sentencing practices’ is but one of many factors which are relevant in the exercise of that discretion. However, the content of that phrase is somewhat elusive. It is trite, but nonetheless fundamental, that each case is different, and not just in matters of detail. The facts and circumstances relating to the offending in each case are quite unique. No two cases are alike, except in that they may, in a broad sense, each possess certain common characteristics. The assessment of the gravity of the offending in each case is, of necessity, different. The relevant factors relating to the prisoner – such as age, health, background, antecedents and character – are all necessarily different. The sentencing judge’s assessment of culpability, remorse and rehabilitation will vary with each particular case. So, too, will the sentencing judge’s assessment as to the extent to which a term of incarceration may operate harshly on a particular prisoner. In the same way, the sentencing judge’s assessment of the relative importance of specific deterrence, general deterrence and denunciation will vary for each case.
All of those factors, and more, are, in each case, factored into the judge’s discretionary judgment as to the appropriate sentence, determined by a process of ‘instinctive synthesis’. That phrase is not an arcane jurisprudential mantra. Rather, it accurately describes the manner in which a sentence is determined in each case. It is for that reason that reasonable minds can, and

regularly do, differ as to the appropriate sentence, sometimes to a marked degree. For, there can be no ‘right’ sentence in any particular case.[38]

[38]Ibid [57]–[58]. Buchanan JA agreed with the observation of Kaye AJA as to the proper role of sentencing statistics and so-called comparable cases. His Honour referred specifically to the need to take into account, inter alia, current sentencing practices as part of the process of ‘instinctive synthesis’.

Recently in Yang v The Queen; DPP v Yang,[39] this Court cited, with approval, the observations of Maxwell P and Buchanan JA in Scerri v The Queen,[40] where their Honours criticised ‘mathematical comparisons’ as being inconsistent with instinctive synthesis. In their joint reasons in Scerri, Maxwell P and Buchanan JA said:

Sentencing judges are required to synthesise a large number of factors in order to arrive at an appropriate sentence. A plea of guilty is one of those factors. Judges are not permitted to take a starting-point and then add or subtract periods of time representing aggravating or mitigating circumstances (as the case may be). Accordingly, it is not to be supposed that in arriving at the sentence the subject of this appeal his Honour deducted a specific period for the plea of guilty. There is, as a result, an inherent artificiality in the requirement which s 6AAA imposes on sentencing judges, to revisit sentences which are the product of an instinctive synthesis and state the sentences that would have been imposed absent one factor, the plea of guilty. [41]

[39][2011] VSCA 161.

[40][2010] VSCA 287 (‘Scerri’).

[41]Ibid [23] (footnotes omitted).

Two-tier sentencing is perhaps a response to the understandable concern that sentencing should be neither arbitrary nor capricious. It focuses upon the desirable goal of consistency. It should be remembered, however, that it is consistency of approach, and not consistency of result, that is the essential object. Sentencing remains a discretionary matter. There is no one correct sentence, but rather a series of possible dispositions, all of which will be relevantly ‘correct’.

In R v Ngui and Tiong,[42] Winneke P made essentially the same point, albeit in the context of indicating his strong disapproval of guideline judgments:

Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have. It would, in my opinion, be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge's discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice.
Accordingly, as I see it, the utility of the relevant guidelines expressed in Wong's case will be as a “sounding board” or “a check” against the exercise of the sentencing judge's discretion. In truth they cannot be anything more because they do not assume to take into account many factors which, in the individual case, will bear upon the level of the appropriate sentence to be imposed.[43]

[42](2000) 1 VR 579.

[43]Ibid 584 (footnote omitted).

The majority in Markarian observed that there may be occasions when some indulgence in an arithmetical process will better serve the ends of transparency and accessible reasoning.[44] However, in my view, the present case was not one such occasion. Rather, the judge’s reliance in this case upon classifying drug offences into various ‘bands’, each linked to a posited sentencing ‘range’, had the very real potential to divert his Honour from his proper task, that being to sentence on the basis of a synthesis of all relevant factors.
[44]Markarian v The Queen (2005) 228 CLR 357, 375 (Gleeson CJ, Gummow, Hayne and Callinan JJ).

In my view, the judge engaged in two-tier sentencing at least in relation to counts 1 and 4.[45] Indeed, the Chief Crown Prosecutor, who appeared before this Court, all but conceded that this was so. Mr Silbert SC said in the course of the hearing:

The attributing of [sentencing] bands runs counter to a long tradition of sentencing practice in this State and indeed it is contrary to what was said by the High Court in Makarian.

[45]The judge adopted the same two staged process as he had in relation to count 1 when he came to deal with count 4 – see [59] of his Sentencing Remarks. It is less clear that his Honour did so in relation to counts 3, 8 and 9. When dealing with those counts, he simply graded them, compared the ranges proffered by the Crown and the defence, and concluded in relation to counts 3 and 8 that the sentence imposed should exceed the median figure.

When asked whether this was a concession by the Crown that specific error had been demonstrated in the present case, Mr Silbert SC accepted that it was. He said:

to countenance the attribution of bands for discrete offences is going to add a whole further layer of complication to the already complicated task of sentencing.

The judge, having approached his sentencing task in the way that he did, fell into error. That error was sufficient to vitiate the exercise of the sentencing discretion. Ground 7 is made out.

Grounds 4, 5, and 6

Having regard to my conclusion that ground 7 has been made out, it is not strictly necessary that I say anything about grounds 4, 5, and 6. Each ground alleges specific error. Nonetheless, as the Court received the benefit of helpful submissions on each point, and as the matters raised are of general application, it may be useful to say something briefly about each of these grounds.

Ground 4 contends that the judge erred by treating as aggravating features of the applicant’s possession of the handgun (count 11), two matters that could not properly have been so regarded. First, his Honour having observed that the applicant had provided no explanation as to why he had the weapon at his home, concluded that

with or without ammunition, it could have been resorted to in relation to [the applicant’s] drug trafficking activity, if necessary… There is no suggestion that there would have been any difficulty for you in obtaining the ammunition for this high-calibre weapon.[46]

[46]Sentencing Remarks [79].

Secondly, the judge said:

Unregistered handguns such as this one are the weapons of choice of firearms’ traffickers and instil fear and concern in our community, particularly in light of a number of notorious and widely publicised shootings in recent years. The trade and use of unregistered firearms of this kind is a serious threat to the stability and welfare of our society and it cannot hope to attack the black market in unregistered firearms without the courts imposing serious penalties for offences of your kind.[47]

[47]Ibid [80] (footnote omitted).

Both criticisms seem to me to be valid. The plea in relation to count 11 had proceeded on the basis that there was no evidence to connect the handgun located at the applicant’s home with his drug activities. The Crown had accepted that this was indeed the case. The applicant submitted that it was wholly speculative for his Honour to have linked the weapon with the drug matters, and even more speculative to have concluded that the applicant could easily have obtained ammunition for it. But for that linkage, the sentence of two years’ imprisonment imposed on count 11 would seem to have been excessive.

As regards his Honour’s general discussion of the dangers of trafficking in firearms, the applicant was not charged with any such offence. His was purely a case of possession of an unregistered weapon. The discussion of ‘notorious and widely publicised shootings’ was simply irrelevant.

In my opinion, ground 4 has substance. However, it is unnecessary for me to determine whether, had that ground stood alone, the sentencing discretion exercised in relation to count 11 would have been vitiated.

Turning then to ground 5, the applicant complained of his Honour’s observation that ‘over many years now there has been a continued and alarming increase in the incidence of drug trafficking’.[48] He submitted that this finding of increased prevalence had been made without any apparent evidential basis. He further submitted that it had been made without the applicant having been given any opportunity to be heard on the point.
[48]Ibid [228]. The whole of this paragraph from the Sentencing Remarks is set out at [40] of these reasons.

This ground is expressed in essentially the same terms as a ground drawn in the unrelated matter of Phommalysack.[49] That case concerned the importation of a commercial quantity of drugs (21.8 kilograms of methamphetamine, 6.3 kilograms of MDMA and 29.1 kilograms of cocaine). The judge, who was also the sentencing judge in the present case, observed that ‘over many years there has been a continual and alarming increase of drug importations and the attendant quantities of drugs of dependence…’.[50]
[49]A case to which I have already referred. This ground was relied upon as one of three in which specific error was alleged by Phommalysack.
[50]Sentencing Remarks [79].

Maxwell P said:

Axiomatically, before prevalence can be take into account for the purposes of sentencing, a judge must have ‘some reliable foundation’ for the conclusion that the offence is in fact (more) prevalent. And if the judge is minded to impose a more severe sentence on account of (increased) prevalence, then on ordinary natural justice principles the matter must be raised with counsel and an opportunity afforded for submissions to be made.[51]

[51]Ibid [82] (footnotes omitted). Maxwell P cited as authority for these propositions R v Paoletti [2003] VSCA 77, [20]; and R v Downie and Dandy [1998] 2 VR 517, 520.

Counsel submitted that it is one thing to say that a particular type of offence is prevalent within the community. The incidence of drug trafficking is a matter of such notoriety that it is hardly necessary, when sentencing, to make reference to that fact. He submitted, however, that it is another thing altogether for a judge, when sentencing an offender, to find that a particular offence is becoming more prevalent and therefore, at least implicitly, warrants more severe punishment. In such circumstances, it was submitted, the requirements of procedural fairness may dictate that the judge should flag his or her intention to approach the matter in that way so that counsel may be heard in relation to it.[52]
[52]R v Downie and Dandie [1998] 2 VR 517, 520 (Callaway JA with whom Phillips CJ and Batt JA agreed).

In my opinion, the applicant is entitled to complain of his Honour’s having arrived at that conclusion without the applicant having had the opportunity to address the judge on that point. It follows that I would accept the applicant’s submission that his Honour proceeded in error.[53] As for ground 4, it is unnecessary, having regard to my earlier findings regarding ground 7, to go further and determine whether this error vitiated the sentencing discretion overall.
[53]Maxwell P was of the same opinion regarding the matter of prevalence in Phommalysack, though he did not regard the error as being sufficient to vitiate the exercise of the sentencing discretion in that case.

Finally, in relation to specific error, I turn to ground 6. The applicant, in support of that ground, referred to his Honour’s observation that the fact that the applicant had been a user of drugs made his offending ‘so much the worse…’.[54]
[54]Sentencing Remarks [231].

It was submitted that, in viewing the matter that way, the judge had treated the applicant’s drug addiction as an aggravating feature of his offending. It was acknowledged by the applicant that addiction will not normally be regarded as a significant mitigating factor in any case involving large scale trafficking. It was submitted, however, that addiction could not be used to aggravate penalty. This error was said to have vitiated the sentencing discretion, and called for the applicant to be re-sentenced.

This Court has addressed precisely this point on a number of previous occasions. When sentencing other offenders associated with ‘Operation Jedi’ (the major drug trafficking organisation of which the applicant was a party), the judge had used exactly the same expression, ‘so much the worse is your offending’. His Honour had also used the same expression in the unrelated case of Phommalysack, and was criticised by this Court for having done so.[55] Maxwell P in that case noted that his Honour’s use of this expression conveyed the clear impression that the appellant in that case was more culpable, and hence deserving of more severe punishment, because of his personal experience of drug addiction. The idea that such addiction should be treated as an aggravating feature was described as a ‘novelty’,[56] and the problem was exacerbated by the fact that nothing of this kind had been suggested by the Crown on the plea.
[55]Nguyen vThe Queen; Phommalysack v The Queen [2011] VSCA 32, [90].
[56]Ibid.

It is unnecessary for present purposes to do any more than refer to what was said in Beckerton v The Queen[57] in that regard:
[57][2011] VSCA 107.

The relevance of the applicant’s use of drugs at the time of the offending is another matter. The sentencing judge was entitled to say, as his Honour did at [79] of his sentencing remarks, that, in the particular circumstances of this case, that addiction carried little weight. That was because the applicant was not solely engaged in trafficking drugs in order to support or maintain her own addiction. Rather, his Honour stated (and it was conceded on the plea) that she had used the money that she had made from selling drugs on ‘clothes, household items, gambling and caring for her children’. Any use of that money to sustain her habit seems to have been somewhat marginal.
His Honour’s observation that the applicant’s offending was ‘so much the worse’ because of her past experience with drugs, and her knowledge of the harm they did to those who used them was, in my opinion, problematic. This Court was highly critical of that same expression when used by his Honour in an unrelated case that came before it earlier this year. On that occasion, Maxwell P had this to say about that expression when applied by this judge in a Commonwealth matter involving the importation of a large quantity of drugs:
There is, however, more substance to the complaint about the judge’s comment that [the appellant’s] offending was ‘so much the worse’ because he had personal experience of the ‘disabilities’ affecting drug-addicted people. His Honour’s statement conveys the clear impression that he regarded [the appellant] as more morally culpable, and hence deserving of more severe punishment, because of his personal experience of drug addiction. As the prosecutor readily conceded on the appeal, this was not a contention advanced by the prosecution on the plea, and the judge was therefore bound to invite submissions from the defence before he could have decided to treat it as an aggravating factor. This is particularly so given the novelty of the proposition that a person’s drug addiction should be treated as aggravating the seriousness of that person’s participation in an offence involving the manufacture or distribution of drugs.
At the same time, for a sentencing judge to treat a matter as aggravating the seriousness of an offence is, in the absence of agreement between the parties, a significant step to take. This experienced sentencing judge gave lengthy and careful reasons for sentence, dealing in turn with all the relevant sentencing considerations. He did not, in terms, characterise this as an aggravating feature.

It should be noted, however, that in Nguyen, despite the President’s criticisms of his Honour’s reasoning regarding the weight to be given to addiction in the context of offences such as importation, the sentence imposed in that case stood.
Nguyen needs to be understood in context. There are, in my opinion, some circumstances in which it can fairly be said that a past history of drug addiction not only does not mitigate an offence such as trafficking, but may be viewed as a factor that worsens the applicant’s level of culpability. I have in mind the admittedly unusual case of an offender who, having been an addict for much of his or her adult life, and therefore fully appreciates the devastating consequences that addiction can have, then overcomes his or her habit, and subsequently decides to sell drugs purely for profit, and out of a

sense of greed. In such a case, comments such as ‘so much the worse is your offending’ may be entirely apt.
The present case does not quite fall into that description. The applicant was still addicted to drugs throughout the period that she engaged in trafficking. Nonetheless, it is fair to say that her primary motivation seems not to have been to obtain money or drugs to maintain her habit, but rather to generate profit which she spent on various personal items, as previously discussed.[58]

[58]Ibid [41]-[45] (Weinberg JA with whom Ashley JA agreed) (footnotes omitted).

The criticisms levelled in other cases by this Court at the expression, ‘so much the worse is your offending’, are equally apposite to the present case.

Once again, however, it is unnecessary for me to determine whether this complaint, if it stood alone, would have vitiated the exercise of the sentencing discretion.

Grounds 1, 2 and 3

Having regard to my conclusion on ground 7, it is once again unnecessary to say anything at length about grounds 1, 2, and 3. In deference to the arguments presented, I will merely make some general observations.

These grounds concern manifest excess, totality, and double punishment. It is convenient to deal with these grounds together.

As regards ground 1, the applicant submitted that the base sentence of 11 years’ imprisonment on count 3 was manifestly excessive. He compared his sentence on this count with the sentences imposed upon others who had trafficked comparable quantities of drugs of dependence, but had received significantly lower sentences.[59]
[59]The applicant referred in particular to Chandler v The Queen; Paksoy v The Queen [2010] VSCA 338 where the offenders had pleaded guilty to trafficking in more than 13 kilograms of pure methylamphetamine (some 18 times the large commercial quantity of that drug), and had been sentenced by this Court to 12 years’ imprisonment for that particular offence. The applicant also relied upon R v D’Aloia [2006] VSCA 237 which involved a much greater large commercial quantity than the present case, but the sentence imposed had been 9 years’ imprisonment. He also referred to R v Ahmed (2007) 17 VR 454 where a 14 year term was imposed for trafficking in more than 14 times the large commercial quantity.

The applicant further submitted that the sentence on each of the two Giretti counts, (seven years on count 1 and four years on count 8), was manifestly excessive. So too, it was submitted, was the sentence of five years on count 4, having regard to the fact that the amount of drugs involved in that count was only just over the threshold for a commercial quantity. Moreover, it was submitted that, as count 4 was inextricably linked to count 1, the sentence of five years on count 4 was manifestly excessive.

Finally, the applicant submitted that the individual sentences on counts 9 and 11 were each manifestly excessive. So too was the total effective sentence of 17 years’ imprisonment.

Ground 2, which complained of a failure to properly to apply the principle of totality, was essentially subsumed within ground 1. It was submitted that the orders for cumulation were excessive having regard to the fact that the applicant was, in reality, conducting a single, on-going business. It was further submitted that there was no warrant for cumulating as much as 50 per cent of the 12 month period on count 9 upon the base sentence.

Finally, in relation to ground 3 (the ground complaining of double punishment) it was submitted that there ought not have been any cumulation between the sentence imposed on count 1 and that imposed on count 4. That was because count 4 related to a quantity of methylamphetamine which the applicant had held in reserve, as wholesale stock, in order to enable him to carry on the business of Giretti trafficking that formed the basis of count 1. The applicant referred in that regard to Pearce v The Queen.[60]
[60](1998) 194 CLR 610, 623-4.

Once again, this ground was effectively subsumed within ground 1.

In my opinion, the sentence of 11 years’ imprisonment imposed on count 3 was itself manifestly excessive. The applicant pleaded guilty to that count. His Honour accepted that there was some evidence of remorse. The applicant was of previous good character, and was found to have reasonable prospects of rehabilitation. Although the amount of the methylamphetamine mix was in excess of the threshold for a large commercial quantity, it was properly characterised as being in the ‘low level’ of that offending.[61]
[61]There is, as I have previously indicated, nothing wrong per se with using terms like ‘low level’. The problem arises when these are converted, as they were in the present case, into ‘sentencing bands’ with particular ranges specified in relation to each such band. It is but a short step from that form of analysis into treating the range applicable to the particular band as the ‘starting point’. In other words, to approach the matter in that way is, as I have endeavoured to explain, to engage in a form of two-tier sentencing.

It should not be forgotten that the actual weight of the drug, in its pure state, was miniscule (1.96 grams of methylamphetamine). Although his Honour stated that the low purity of the drug in the mixture was not to be given significant weight in the sentencing process, he cited no authority for that proposition. He noted only that ‘it ha[d] not been submitted to the contrary’.[62]
[62]Sentencing Remarks [43].

In support of his view that the low purity of the drug was of no real significance when it came to assessing the applicant’s culpability, his Honour observed that all drugs proscribed by the Drugs, Poisons and Controlled Substances Act 1981 have deleterious consequences. He added that trafficking in any of them was properly to be regarded as a serious criminal offence.

These latter propositions are, of course, supported by the authorities.[63]
[63]See R v D’Aloia [2006] VSCA 237 (referring to R v Pidoto & O’Dea (2006) 14 VR 269 as support for that proposition) and R v Duncan [2006] VSCA 239.

However, the judge’s earlier statement that the low purity of the drug in the mixture was not to be given significant weight when assessing the applicant’s culpability was, in my view, incorrect. Obviously, the legislature has chosen to treat any drug that is part of a mixture as though the whole of that mixture constituted the drug of dependence. That is clear from the fact that it is the weight of the mixture that determines whether the offence is to be characterised as involving, for example, a commercial quantity, on the one hand, or a large commercial quantity on the other.

There is no reason, in principle, why the fact that the mixture contains what is plainly only the most miniscule quantity of a drug of dependence, and is therefore unlikely to produce the deleterious effects normally associated with a much larger amount of that particular drug, albeit in a mixture, should not be regarded as a significant factor to be taken into account in assessing the gravity of the offending.

This very point was considered by the Western Australian Court of Criminal Appeal in R v Mahasay.[64] There it was held that the low level of purity of the methylamphetamine in question was a factor of some importance, at least in a case involving trafficking in that drug. In the case of couriers, the purity might be less relevant.
[64](2002) 135 A Crim R 232.

The matter arose again, before this Court, in R v Minh Thanh Do.[65]There, the Court found it unnecessary to determine whether the low level of purity of a drug as a mitigating factor had survived the rejection by this Court in R v Pidoto & O’Dea[66] of a harm-based system of classification of drug offences.
[65][2008] VSCA 199.
[66](2006) 14 VR 269 (‘Pidoto’).

In my opinion, there is nothing in Pidoto which requires the low level of purity of a particular drug in a case such as the present to be given little or no weight. Whether one views such a matter as a mitigating circumstance, or rather as simply reducing the objective culpability of the offending, matters little in the ultimate result. There is obviously a difference between trafficking in 3.9 kilograms of pure methylamphetamine, and trafficking in 1.9 grams of methylamphetamine in a mixture of 3.9 kilograms. To treat these two offences as relevantly indistinguishable would be an affront to common sense.

The sentence of 11 years imposed on count 3 also seems to me to be out of kilter with sentences imposed for offending of a similar nature and on a similar scale.

Recently, in Rizzo v The Queen,[67] this Court was faced with the task of having to re-sentence an offender who, like the applicant in the present case, had pleaded guilty to trafficking in a large commercial quantity of methylamphetamine. However, the scale of the offending in Rizzo was far greater than that in the present case.
[67][2011] VSCA 146 (‘Rizzo’).

The appellant in Rizzo was a principal organiser of a large and well-organised drug dealing operation known as ‘the Company’. He was essentially second in charge of that business, which was operated by Antonios Mokbel. Rizzo had prior convictions, including one for possession of an unregistered handgun, and one for possession of a drug of dependence. His offending, inter alia, concerned the distribution of at least 42 kilograms of methylamphetamine, worth at least $4.2 million wholesale. The judgment of this Court does not indicate what the level of purity may have been. The likelihood is that this could not be gauged because the drug had been sold over time, and could not be tested. Rizzo was re-sentenced by this Court to a term of 12 years and six months on the count of trafficking the 42 kilograms of methylamphetamine.

The offending in Rizzo stands in stark contrast with the applicant’s offending on count 3 in the present case, which, it will be recalled, concerned around 3.9 kilograms in a mixture, and 1.96 grams pure.

Even allowing for the care with which comparisons should be made to supposedly comparable cases,[68] and the even greater care that is required in relation to the use of sentencing statistics, the sentence imposed by this Court in Rizzo suggests that the term of 11 years’ imprisonment imposed on count 3 in the present case was manifestly excessive.
[68]Hudson v The Queen; DPP v Hudson [2010] VSCA 332 and Hili v The Queen; Jones v The Queen (2010) 272 ALR 465.

That conclusion is supported by the observations of Ashley JA in the related matter of Samac v The Queen,[69] the judgment in which was delivered this day. His Honour’s discussion of the sentences imposed by this Court for offending of this nature, and particularly his analysis of the decision in R v Ahmed,[70] illustrates the point.
[69][2011] VSCA 171.
[70](2007) 17 VR 454 (‘Ahmed’).

Ahmed involved a much greater level of culpability than that on the part of the applicant in the present case. Yet he received a sentence of 14 years’ imprisonment on a count of trafficking in a large commercial quantity vastly greater than that trafficked in this case, and he had prior convictions. The sentence imposed upon the applicant on count 3 was very severe having regard to the pattern of sentencing, in this State, for that particular offence.

I would also accept the submission that count 4 was so closely linked to count 1 as to make it inappropriate for there to be any cumulation between these two offences. These were notionally two separate acts of trafficking, but they involved essentially one act of carrying on a business in the trafficking of the one batch of drugs. The drugs in count 4 were simply the residue of the drugs sold as the basis for count 1.

Finally, as I have previously said, I regard the sentence of two years on the count of possession of an unregistered pistol (count 11) as excessive.

Conclusions and re-sentencing

I would allow this appeal and set aside the sentences imposed below. In lieu thereof, I would sentence the applicant as follows:

Count

New sentence

Cumulation*

1

5 years’ imprisonment

18 months

3

8 years’ imprisonment

Base

Count

New sentence

Cumulation*

4

3 years’ imprisonment

-----

8

3 years’ imprisonment

9 months

9

12 months’ imprisonment

6 months

11

12 months’ imprisonment

6 months

*Section 6E of the Sentencing Act 1991 requires a direction by the Court if the terms of imprisonment imposed on a serious offender are not to be served cumulatively on other sentences imposed. The applicant is to be sentenced as a serious drug offender on counts 1 and 4. For that reason, I have expressed the amount of cumulation required in relation to counts 1 and 4 in terms of the amount of concurrency with other counts. In relation to counts 8, 9 and 11 the position is different. There, orders for cumulation are to be made.

As the table above demonstrates, I would make the following orders for concurrency in relation to counts 1 and 4. Three and a half years of the sentence on count 1 and the entire sentence on count 4 should be wholly concurrent with the base sentence of eight years’ imprisonment on count 3, and with each other.

In relation to orders for cumulation, I would order that nine months of the sentence on count 8, six months of the sentence on count 9, and six months of the sentence on count 11 be cumulated upon the base sentence and upon each other.

That makes a new total effective sentence of 11 years and three months.

I would fix a non-parole period of eight years and three months.

For the purposes of s 6AAA of the Sentencing Act 1991, and bearing in mind that the applicant did not plead guilty to all counts, I would indicate simply that had he not pleaded guilty to any of these offences, I would have imposed a total effective sentence of 14 years’ imprisonment with a non-parole period of 11 years.

HARGRAVE AJA:

I have had the advantage of reading in draft the reasons for judgment of Weinberg JA. I also agree with them.

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Citations

Trajkovski v The Queen [2011] VSCA 170

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Count	Offence	Maximum sentence	Sentence	Cumulation
1	Traffick a commercial quantity of methylamphetamine between 26 August 2005 and 28 December 2005	25 years’ imprisonment	7 years’ imprisonment	2 years and 6 months
3	Traffick a large commercial quantity of methylamphetamine on or about 29 December 2005	Life imprisonment	11 years’ imprisonment	Base
4	Traffick a commercial quantity of methylamphetamine on or about 29 December 2005	25 years’ imprisonment	5 years’ imprisonment	18 months
8	Traffick MDMA between 26 September 2005 and 29 December 2005	15 years’ imprisonment	4 years’ imprisonment	9 months

Count	New sentence	Cumulation*
1	5 years’ imprisonment	18 months
3	8 years’ imprisonment	Base

[2011] VSCA 170

17 June 2011