Vincent v The Queen
[2021] VSCA 99
•21 April 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0020
| YOSHAAN VINCENT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 April 2021 |
| DATE OF JUDGMENT: | 21 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 99 |
| JUDGMENT APPEALED FROM: | DPP v Vincent (Unreported, County Court of Victoria, Judge Dyer, 20 September 2019) |
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CRIMINAL LAW – Sentence – Appeal – Trafficking in commercial quantity of drug of dependence, trafficking in drug of dependence, failing to comply with court order, dealing with proceeds of crime and other offences – Manifest excess – TES of 7 years and 6 months, with NPP of 4 years and 6 months – Whether sentence manifestly excessive – Whether sentence of 6 years and 6 months for commercial quantity trafficking manifestly excessive – Sentences not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | Marcevski Lawyers |
| For the Respondent | Ms D Piekusis QC with Mr L Fluxman | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
McLEISH JA:
The applicant pleaded guilty in the County Court to trafficking in a drug of dependence (cocaine); failing to comply with an order to provide information; trafficking in a commercial quantity of a drug of dependence (methylamphetamine); knowingly dealing with the proceeds of crime; and unrelated and related summary offences. Following a plea on 12 September 2019, he was sentenced on 20 September 2019 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence (cocaine)[1] 15 years 1 year 3 months 2 Failing to comply with an order to provide information[2] 5 years 1 year 3 months 3 Trafficking in a commercial quantity of a drug of dependence (methylamphetamine)[3] 25 years 6 years and 6 months Base 4 Knowingly deal with the proceeds of crime[4] 15 years 2 years 6 months Unrelated summary charge 5 Possess prohibited weapon without exemption[5] 240 penalty
units or 2 years1 month Nil Summary charges 6-7 Commit an indictable offence while on bail[6] 30 penalty units or 3 months 1 month Nil Summary charges 8-12, 14-15 Contravene conditions of bail[7] 30 penalty units or 3 months 1 month Nil Summary charge 13 Possess schedule 4 poison[8] 10 penalty units $500 fine — [1]Drugs Poisons and Controlled Substances Act 1981, s 71AC(1).
[2]Crimes Act 1958, s 465AA(9).
[3]Drugs Poisons and Controlled Substances Act, s 71AA.
[4]Crimes Act 1958, s 194(2).
[5]Control of Weapons Act 1990, s 5AA.
[6]Bail Act 1977, s 30B.
[7]Bail Act 1977, s 30A(1).
[8]Drugs, Poisons & Controlled Substances Act, s 36B.
Total Effective Sentence: 7 years and 6 months Non-Parole Period: 4 years and 6 months Pre-sentence Detention Declared: 545 days 6AAA Statement: 11 years, with a non-parole period of 7 years and 6 months
The applicant now seeks leave to appeal against sentence on a single proposed ground of appeal as follows:
1.The individual sentences imposed on charge[s] 1 to 4, the orders for cumulation on each of those charges, the total effective sentence and the non-parole period were manifestly excessive.
Particulars
Insufficient weight was given to:
a)matters which moderated the criminality / culpability of the applicant concerning each charge on the indictment;
b) the overlap between some of the charges;
c) the need to avoid double punishment;
d) current sentencing practice;
e) the personal circumstances of the applicant and the matters in mitigation.
Circumstances of the offending
Background
On 29 November 2017, the applicant was arrested in relation to alleged blackmail offences (for which he was ultimately acquitted in June 2019). On 25 January 2018, the applicant was granted bail, in the Supreme Court, in relation to the alleged blackmail offending, with conditions which included: that he not associate with any member of the Comancheros; that he not contact any co-accused; that he only have one mobile number, and that he provide that number to the informant; and that he provide the passcode to his mobile phone to the informant upon request.
Charge 1 — Trafficking in a drug of dependence (cocaine)
Between 15 March 2018 and 25 April 2018, the applicant exchanged ‘Snapchat’ messages with David Witanga about their respective whereabouts, times to meet, a gram of brown crystal (cocaine), the quality of the cocaine, payment, and arranging to meet at Bowling Green Alley in Mitcham.
On 25 April 2018, police observed the applicant leaving his home and driving to Halliday Park, Mitcham, where he parked in the parking bays on Bowling Green Alley. Immediately thereafter, Witanga arrived and parked next to the applicant’s vehicle for eight minutes. Witanga was then followed and intercepted by police in Wantirna South. Police searched Witanga’s vehicle and located 8.1 grams of cocaine, with a purity of between 26 and 28 per cent.
Charge 2 — Failing to comply with an order to provide information
When he was arrested on 29 November 2017, the applicant was in possession of two mobile phones. Police also located other electronic devices at the applicant’s address. These devices were locked with passwords, which the applicant refused to provide after being given an order pursuant to s 465AA of the Crimes Act 1958.
On 23 May 2018, the applicant was again arrested, and was in possession of three mobile phones. He was again provided with an order pursuant to s 465AA, but refused to provide the passcode to two of the mobile phones.
Charge 3 — Trafficking in a commercial quantity of a drug of dependence (methylamphetamine)
Following his arrest on 23 May 2018, police searched the applicant’s premises and located a snap-lock bag containing 27.7 grams of methylamphetamine, with a purity of 82 per cent, on a desk in the applicant’s bedroom.
Subsequently, a member of the Vehicle Examination Unit of Victoria Police conducted a search of the applicant’s vehicle and located a secured lock-box on the underside of the rear-passenger side wheel arch. Fourteen bags containing methylamphetamine, weighing a total of 390 grams, with a purity between 76 and 82 per cent, were found inside the lock-box.
Charge 4 – Knowingly deal with the proceeds of crime
Following his arrest on 23 May 2018, police located $6,900 in cash in the applicant’s vehicle, and cash totalling $23,210 at the applicant’s premises.[9]
[9]In its written case, the respondent referred to additional amounts of cash totalling a further $3,180 which were said to have been referred to in the prosecution opening. The parts of the original prosecution opening to which the respondent referred were, however, deleted during the course of the plea hearing – leaving the figures as we have set them out.
Unrelated summary charge 5 — possess prohibited weapon without exemption
During the search of the applicant’s premises on 29 November 2017, police located a samurai sword, identified as being a prohibited weapon.
Related summary charges 6-7 (described as one rolled up charge) — Commit an indicatable offence while on bail
The offences committed on 25 April 2018 (trafficking cocaine), and 23 May 2018 (trafficking methylamphetamine), were committed while the applicant was on bail.
Related summary charges 8-12, and 14-15 (described as one rolled up charge) — contravene conditions of bail
The applicant contravened the conditions of his bail by using more than one mobile phone number from 14 February 2018 until the date of his arrest on 23 May 2018, and by associating with members of the Comancheros between 23 February 2018 and 14 May 2018.
Related summary charges 13 – possess schedule 4 poison
During the search of the applicant’s premises on 23 May 2018, police also found nine vials marked Oztropin, which contained the Schedule 4 poison and growth hormone, Somatropin.
Sentencing reasons
The judge commenced his reasons for sentence with a description of the applicant’s offending.[10] In the course of describing the applicant’s offending, the judge said that the circumstances of the offending revealed ‘a level of sophistication and pre-planning which was clearly directed towards the avoidance of detection and the maintenance of [the applicant’s] ability to continue [his] involvement in this highly lucrative but socially evil pursuit of drug trafficking’.[11]
[10]DPP v Vincent (unreported, County Court of Victoria, Judge Dyer, 20 September 2019) (‘Reasons’) [1]–[17].
[11]Ibid [16].
The judge said that he regarded the applicant’s involvement in each of the indictable offences (charges 1 to 4) as being ‘mid-range offending’.[12]
[12]Ibid.
The judge observed that the summary offences committed by the applicant involved breaches of his bail conditions and the commission of indictable offences while on bail. He said that these must be ‘seen as significant’, given that the commencement of the applicant’s offending occurred only some five weeks after he had been granted bail in the Supreme Court.[13]
[13]Ibid [17].
Next, the judge noted that the applicant had a relevant criminal history which included a conviction for trafficking methylamphetamine in 2016, together with additional convictions dating back to 2013, involving the possession of firearms and other controlled weapons and offences of dishonesty and ‘some violence’.[14]
[14]Ibid [18].
The judge then turned to the applicant’s personal circumstances, noting that the applicant was then 30 years of age. The judge referred to the fact that the applicant attended a private school, completing VCE in 2006, before commencing a carpentry pre-apprenticeship in 2007, and continuing in that area of training for approximately 18 months.[15] The judge also noted that the applicant’s parents and his siblings had no involvement with police.[16]
[15]Ibid [19].
[16]Ibid.
The judge accepted that issues concerning the separation of the applicant’s parents, and serious health issues involving his father, impacted on the applicant’s vocational training, forcing him to give up his apprenticeship and take on full time employment in the retail sector for a number of years.[17] The judge also accepted that a serious injury to the applicant’s Achilles tendon in 2017 had restricted the applicant’s ability to perform construction work.[18]
[17]Ibid [20].
[18]Ibid.
The judge referred to the applicant having the support of his family and his partner, and also to the various character references which were tendered on the plea.[19]
[19]Ibid [21].
The judge accepted that the applicant’s offending occurred in circumstances where the applicant was actively using drugs. He said, however, that he was ‘reluctant to wholly accept’ a submission that the applicant’s trafficking (particularly in relation to charge 3) was motivated simply by the applicant’s need to fund his own addiction. That said, the judge accepted that the applicant’s drug use and his difficulty in securing employment due to his physical injury ‘may have compromised the applicant’s judgment’, and that this moderated the applicant’s moral culpability.[20]
[20]Ibid [21]–[22].
The judge noted that the applicant had pleaded guilty at an early stage, and accepted that this was indicative ‘of some degree of genuine remorse and warrant[ed] a greater discount on sentencing than would be the case if [the] pleas of guilty were of not more than utilitarian benefit’.[21]
[21]Ibid [23].
On the plea, reports from a psychologist (Mr Cummins) and a clinician who had seen the applicant for drug rehabilitation and counselling (Ms Brown) were tendered. The judge referred to, and took into account, these reports — noting Ms Brown’s statement that the applicant had ‘reflected heavily over the past months in custody and is committed to rehabilitating his life’.[22]
[22]Ibid [23]–[24].
The judge also referred to various certificates tendered on the plea and negative drug screening tests which had been performed while the applicant was in custody.[23]
[23]Ibid [25].
The judge said that while the applicant’s desire to avoid relapsing into drug use and further criminality was ‘laudable’, his association with the Comancheros motorcycle club was troubling.[24] The judge said:
In your case, I do not believe your criminality is increased by your association with the Comancheros or any other group. It is clear that drug trafficking and related offending, to which I have referred, involve you as the sole offender, albeit as part of what I regard as clearly an organised drug trafficking operation.[25]
[24]Ibid [27].
[25]Ibid [28].
The judge said that his real concern for the applicant was that any involvement with a motorcycle gang would greatly impede the applicant’s efforts to rehabilitate himself and avoid further criminal activity.[26]
[26]Ibid [29].
Under the heading ‘Sentencing considerations’, the judge referred to relevant sentencing authorities, including DPP v Gregory,[27] Fernando v The Queen[28] and DPP v Condo.[29] The judge observed that neither the maximum sentence nor current sentencing practices were ‘the sole determinant of an appropriate sentence’. Correctly, he observed that they were among many factors which had to be taken into account in the sentencing synthesis. He went on to say, however, that the maximum penalty of 25 years in relation to charge 3 was ‘an important factor in determining a fair sentence in a quantity-based sentencing regime’.[30]
[27][2017] VSCA 151 (‘Gregory’).
[28][2017] VSCA 208 (‘Fernando’).
[29][2019] VSCA 181 (‘Condo’).
[30]Reasons [33].
The judge concluded his reasons for sentence as follows:
Your offending, unfortunately, involves aggravating factors that were considered in Gregory, in that you have relevant prior convictions, and the period of your offending was conducted over a substantial period. The fact that your offending occurred whilst you were on bail and involved breaches of bail conditions has exposed you to further penalties applicable to the summary offending to which you have pleaded guilty. This court must be careful to ensure that you are not doubly penalised in relation to these summary matters.
Your offending in relation to the trafficable quantity of cocaine is the subject of a separate indictment and there must be some additional penalty imposed upon you. The remaining indictable offences are, in my view, inherently part and parcel of your commercial trafficking activity and do not necessitate, in my view, any significant cumulation of terms of imprisonment upon your base sentence. Nevertheless, some cumulation is warranted.
The remaining summary offending concerning the sword and the Schedule 4 poison does not, in my view, warrant any additional period to cumulate upon the base sentence.
The sentencing guidelines of general and specific deterrence and denunciation of your conduct must be given prominence in the sentence that [I] impose upon you. Nevertheless, I do accept that your early plea of guilty warrants a significant discount for the reasons to which I have already referred. I am also of the view that your age and the progress that you have made towards the avoidance of further criminal activity warrants the imposition of a lower minimum period than would ordinarily be the case.[31]
[31]Ibid [34]–[37] (citation deleted).
Parties’ contentions
The applicant submitted that the sentence of one year imposed on charge 1 (trafficking simpliciter) was manifestly excessive, having regard to the following:
·the trafficking occurred on one day, and only involved one transaction;
·the amount of cocaine trafficked was ‘modest’ (8.1 grams);
·the purity of the cocaine involved was ‘low’ (between 26 and 28 per cent); and
·the applicant had only one ‘relatively minor trafficking prior’.
The applicant contended that the sentence of one year imposed on charge 2 was manifestly excessive. He submitted that despite the fact that this was a ‘rolled-up charge, relating to several refusals to provide the required information, it was not an offence that necessarily required the imposition of a term of imprisonment and/or justified a 12 month term of imprisonment’. As the applicant had no prior convictions for such behaviour, a 12 month sentence was manifestly excessive — as was cumulating three months for this offence.
The applicant submitted that the sentence of six years and six months on charge 3 (trafficking in a commercial quantity) was manifestly excessive because the quantity of drugs was ‘just over a commercial quantity, in relative terms, and this fact was not properly reflected in the applicant’s sentence on this individual charge’. The applicant submitted that the sentences imposed in Arici v The Queen[32] and Condo[33] provided guidance as to current sentencing practices for commercial quantity drug trafficking.[34]
[32][2019] VSCA 228 (‘Arici’).
[33][2019] VSCA 181.
[34]See s 5(2)(b) of the Sentencing Act 1991.
The applicant contended that the sentence of two years imposed on charge 4 (knowingly dealing with the proceeds of crime) was manifestly excessive, ‘particularly given the considerable overlap between charges 1 and 3 and this charge’. The applicant also submitted that the order for six months’ cumulation was manifestly excessive. The applicant pointed to lesser sentences which had been imposed in other cases where the offending involved larger amounts of money.
Next, the applicant contended that whether or not the sentences on charges 1 and 3 were manifestly excessive, the sentence on charge 4 and order for cumulation should be viewed as manifestly excessive because the case against the applicant concerning charge 4 was that the money found was the proceeds of his drug trafficking which was the conduct supporting charges 1 and 3. Thus, it was submitted that the sentences imposed in respect of charges 1, 3 and 4 involved double punishment.
In further support of his arguments of manifest excess, the applicant referred to his early plea of guilty and the fact that the plea was indicative of some genuine remorse; the judge’s findings about the applicant’s drug use, and difficulty in securing employment due to his physical injury, possibly having compromised the applicant’s judgment and thereby moderating his moral culpability; and the applicant’s involvement with drug rehabilitation and counselling with the assistance of Ms Brown. He submitted that ‘insufficient weight was given’ to these mitigating factors’.
Finally, the applicant submitted that if his contention that the individual sentences and orders for cumulation were manifestly excessive was upheld, then the total effective sentence and non-parole period should also be viewed as manifestly excessive.
The respondent noted that in order for the applicant’s manifest excess ground to succeed, the applicant had to show that the sentences imposed were wholly outside the range of sentencing options available to the judge. It then submitted that the complaints of manifest excess in respect of charges 1 and 2 are not reasonably arguable. It accepted, however, that the sentences on charge 3 and 4 could each be ‘considered stern in light of current sentencing practices’.
That said, the respondent ultimately contended that the sentences on charges 3 and 4 were not wholly outside the range of available sentences and, if leave to appeal were to be granted, the appeal should be dismissed.
In contending that neither the sentences imposed on charges 1–4 nor the total effective sentence and non-parole period were manifestly excessive, the respondent relied on the following matters:
(1)Charges 1, 3 and 4 and the second occasion upon which the applicant failed to comply with an order (charge 2) were committed while the applicant was on bail. Consequently, the presumption of cumulation applied to those offences.[35]
(2)On 17 November 2016, the applicant was sentenced for trafficking methylamphetamine to a term of imprisonment of 1 year together with a community correction order (‘CCO’) of a further 12 months. The applicant’s offending occurred while he was on this CCO.
(3)The sentence imposed on charge 1 was only 6.6 per cent of the maximum penalty.
(4)The sentence imposed on charge 2, in respect of two separate occasions upon which the applicant refused to comply with a court order to provide information, was only 20 per cent of the maximum penalty.
(5)The sentences imposed on charges 3 and 4 were, respectively, 26 per cent and 13 per cent of the maximum penalties for those offences.
[35]See ss 16(1A)(e) and (3C) of the Sentencing Act 1991.
Consideration
The applicant was sentenced to six years and six months (as the base sentence) on charge 3, with a further 12 months (in total) being cumulated upon this sentence to make a total effective sentence of seven years and six months. It is therefore convenient to look first at the sentence imposed on charge 3.
In submitting that the sentence imposed on charge 3 was manifestly excessive, the applicant pointed to the sentences imposed for trafficking in a commercial quantity in the cases of Arici[36] and Condo.[37]
[36][2019] VSCA 228.
[37][2019] VSCA 181.
In Arici, the relevant trafficking involved 442.7 grams of methylamphetamine (as compared to the 417.7 grams involved in the applicant’s offending). The offender in Arici, however, only received a sentence of four years (two years and six months less than the applicant received).
In Condo, for offending which involved an unknown amount, but which it was accepted approached the upper end of the then commercial quantity range,[38] the offender was originally sentenced to five years and nine months — which sentence was increased by this Court to nine years and nine months. It should immediately be observed that the commercial quantity range applicable at the time of the applicant’s offending was lower (250 grams to 749.9 grams in a mixture) than it was at the time of the offending in Condo (500 grams to 999.9 grams in a mixture).[39]
[38]Ibid [11]–[12].
[39]Ibid [10].
If one merely looked at the weight of methylamphetamine (in a mixture) in Arici and the present case, one might say that the sentence imposed on the applicant on charge 3 is high. We do not think the same can necessarily be said when one compares the applicant’s sentence with the sentence imposed by this Court in Condo. Two further points may be made.
First, while the weight of drugs involved in drug trafficking is very significant, as has been said many times before, it is only one of the many factors that must be taken into account and synthesised for the purpose at arriving at an appropriate sentence in an individual case.[40] As was said in Wong v The Queen,[41] in the context of a similar Commonwealth offence,[42] the selection of the weight of a drug as the chief factor to be taken into account in fixing a sentence ‘represents a departure from fundamental principle’.[43] In the case of Arici, in particular, the offender’s personal circumstances militated more strongly in favour of a lower sentence than the applicant’s personal circumstances in the present case. A comparison between the applicant’s case and any other case merely by reference to drug quantities would risk a departure from fundamental principle of the kind referred to in Wong.
[40]See most recently, Nguyen v The Queen [2021] VSCA 59, [42].
[41](2001) 207 CLR 584 (‘Wong’).
[42]Being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B of the Customs Act 1901 (Cth).
[43]Wong (2001) 207 CLR 584, 609 [70] (Gaudron, Gummow and Hayne JJ).
Secondly, accepting that current sentencing practices establish that the sentence imposed on the applicant is high compared to other sentences for this offence, it is to be remembered that current sentencing practices are only one of the matters that a sentencing court is required to take into account in fixing a just sentence.[44]
[44]DPP (Vic) v Dalgliesh (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ) and 453-4 [82] (Gageler and Gordon JJ).
As we have already noted, in sentencing the applicant, the judge referred to this Court’s decision in Gregory.[45] In Gregory, this Court expressed the opinion that the current sentencing practices for commercial quantity drug trafficking in the upper category of that offence, that then existed, were inadequate.[46] The Court said that sentences ‘well into double figures’ might have been expected for commercial quantity trafficking offences where one or more of the following features was present:
·the quantity of drug involved approached the large commercial quantity threshold;
·the offender was in charge of the trafficking business;
·the business was conducted for a substantial period;
·the offender pleaded not guilty; and/or
·the offender had relevant prior convictions.[47]
[45][2017] VSCA 151.
[46]Ibid [100].
[47]Ibid [98].
The judge described the applicant’s offending as involving aggravating factors that were considered in Gregory, in that ‘[the applicant had] relevant prior convictions, and the period of [his] offending was conducted over a substantial period’.[48] It should immediately be noted, however, that the offending constituting charge 3 occurred on one day (23 May 2018). While the applicant did not advance an argument that the judge’s reference to ‘a substantial period’ constituted specific error, he relied upon the judge’s statement as providing an explanation as to why the judge imposed a sentence which he submitted was manifestly excessive.
[48]Reasons [34].
The judge’s reference to the applicant’s offending occurring over a substantial period is, perhaps, unfortunate. On one reading of Reasons [34],[49] the judge may have meant no more than when one looked at all of the charges, the applicant’s offending occurred over a period of months. Such a statement would be unimpeachable (charge 2 having been first committed in November 2017, charge 1 in April 2018, and charges 3 and 4 in May 2018). On the other hand, while it might be said that any reference by his Honour to the offending constituted by charge 3 occurring over a substantial period would be unfairly unfavourable to the applicant, it should equally be noted that his Honour did not refer to the fact that the offending occurred while the applicant was on a CCO nor that there was any presumption in favour of cumulation brought about by the fact that the bulk of the applicant’s offending occurred while he was on bail.[50]
[49]While Reasons [34] is a relatively short paragraph, it deals with, and links, the issues of ‘aggravating factors’, Gregory, the period of offending, prior convictions, breach of bail, breach of bail conditions and double punishment.
[50]See ss 16(1A)(e) and (3C) of the Sentencing Act (sections to which the judge does not appear to have been taken during the course of the plea hearing).
Ultimately, the issue of manifest excess falls to be determined by reference to all of the applicant’s relevant circumstances and the circumstances of his offending. In that regard, we note that the judge described the applicant’s offending as revealing a level of sophistication and preplanning which was directed towards the avoidance of detection and the maintenance of the applicant’s ability to continue his involvement in drug trafficking.[51]
[51]Reasons [16].
The applicant’s trafficking in a commercial quantity of methylamphetamine was, as the judge found, a midrange example of a serious offence. The seriousness with which the Parliament views offending of this kind can be seen by the fact that the maximum term of imprisonment for this offence is 25 years.
The applicant’s offending was committed while he was on a CCO, and also while he was on bail (although in respect of being on bail, having regard to summary charges 6 and 7, it is important to take care to ensure that there is no element of double punishment in the sentences imposed).[52]
[52]See the judge’s treatment of this issue at Reasons [34].
Moreover, as we have already noted, the applicant had a relevant prior conviction for trafficking in methylamphetamine, for which he had received a term of imprisonment and a CCO. Plainly, the imposition of that sentence did not deter him from offending again. In the circumstances, both general deterrence and specific deterrence were important sentencing considerations. We acknowledge the judge’s optimism as to the applicant’s future prospects, but note that he made no positive finding as to those prospects. At the same time, the judge allowed for this consideration by imposing a shorter non-parole period than might otherwise have been expected for a sentence of 7 years and 6 months.
Notwithstanding the respondent’s concession that the sentence imposed on charge 3 ‘could be considered stern in light of current sentencing practices’, we are not persuaded that the sentence was wholly outside the permissible range of sentencing options available to the judge. In our view, the seriousness of the applicant’s offending, his prior criminal history and the fact that the offending was committed while he was on both a CCO and bail justified the judge in passing the sentences and making the orders made by him.
Similarly, we are not persuaded that any of the other sentences or orders for cumulation were wholly outside the permissible range[53] or led to a total effective sentence and non-parole period that was wholly outside the permissible range. In our view, sentences of one year on each of charges 1 and 2, and two years on charge 4, and the sentences imposed in respect of the summary charges, were all well open, as were the relatively modest orders for cumulation. Moreover, it is plain that the judge gave appropriate consideration to each of the matters relied upon in mitigation, and that his Honour’s consideration of those matters was reflected in the various sentences and orders that were made.
[53]Again, notwithstanding the respondent’s concession about the sternness of the sentence imposed on charge 4.
The applicant’s submission that the sentences imposed in respect of charges 1, 3 and 4 involved double punishment must also be rejected. First, there is no evidence that the money involved in charge 4 was the proceeds of the specific drug trafficking which comprised either charge 1 or charge 3. Secondly, having referred to double punishment in the context of the summary offences,[54] the judge was plainly alive to the issue generally. Thirdly, the relatively modest order for cumulation made in respect of charge 4 tells against any notion that the applicant was subjected to double punishment.
[54]Reasons [34].
Conclusion
While the applicant’s contention that the sentence imposed upon him was sufficiently arguable to justify a grant of leave to appeal (and we will grant leave to appeal accordingly), the appeal must be dismissed.
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