Wilhelm Bruno Mueller v The Queen
[2017] VSCA 132
•13 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0181
(Conviction)
S APCR 2015 0160
(Sentence)
| WILHELM BRUNO MUELLER | Applicant |
| v | |
| THE QUEEN | Respondent |
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DETERMINED ON THE PAPERS
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| JUDGES: | REDLICH, WEINBERG and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF JUDGMENT: | 13 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 132 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Singh (Unreported, County Court of Victoria, Judge Howard, 24 July 2015) |
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APPLICATION FOR EXTENSION OF TIME TO APPEAL AGAINST CONVICTION AND
ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Conviction – Extension of time application – Delay – Bowling v The Queen [2013] VSCA 87; Kumar v The Queen [2014] VSCA 102; Kentwell v The Queen (2014) 252 CLR 601 applied – Trafficking large commercial quantity of drug of dependence, namely ephedrine – Whether verdict unsafe and unsatisfactory – Circumstantial evidence of intention to possess ephedrine for sale – Kural v The Queen (1987) 162 CLR 502 referred to.
CRIMINAL LAW – Appeal – Sentence – Election to renew application for leave – Applicant’s role in criminal enterprise – Whether sentence of 15 years’ imprisonment with non-parole period of 10 years for trafficking 27 times large commercial quantity of ephedrine manifestly excessive – Leave refused.
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APPEARANCES: | Counsel | Solicitors |
| No oral hearing. By consent the matter was decided having regard to the written materials filed by the parties. | ||
REDLICH JA
WEINBERG JA
McLEISH JA:
The applicant, a Canadian national, stood trial (along with two co-accused, Amneet Singh and Arvinder Singh) in the County Court and was found guilty of trafficking a large commercial quantity of a drug of dependence, namely ephedrine, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’). He was sentenced on 24 July 2015 to 15 years’ imprisonment with a non-parole period of 10 years.
On 28 September 2015 the applicant sought leave to appeal against sentence but did not require an oral hearing. On 17 February 2016 leave was refused by Osborn JA.[1] According to the applicant’s affidavit in support of his application for an extension of time in which to appeal against conviction, his solicitors, Victoria Legal Aid (‘VLA’), refused to provide further funding. The applicant, then self‑represented, filed an election to renew his application for leave to appeal against sentence before two Judges of Appeal, again on the papers.
[1]Mueller v The Queen (Unreported, Victorian Court of Appeal, Osborn JA, 17 February 2016) (‘Mueller’).
Extension of time within which to apply for leave to appeal against conviction
Prior to the hearing of his further application for leave to appeal against sentence, the applicant indicated to the Court of Appeal registry that he wished to also appeal against his conviction. Two hearing dates for his sentence appeal, in April and August 2016, were vacated and an application for leave to appeal against conviction out of time was foreshadowed. The applicant eventually lodged a notice of appeal against conviction and written case on 5 September 2016, together with his extension of time (‘EOT’) application and a sworn affidavit. In his affidavit he deposed that he had been under the misapprehension that his earlier application for leave to appeal prepared by VLA had included an application for leave to appeal against conviction.
The applicant seeks leave to appeal against conviction on the single ground that the verdict was unsafe and unsatisfactory. The EOT application forms a preliminary hurdle that the applicant must overcome before he can seek leave to appeal against conviction.
In Kumar v The Queen[2] this Court, citing with approval the reasons of Gowans J in R v Darby,[3] enumerated the following principles which apply where an extension of time in which to appeal is sought:
(1)the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2)extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3)rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4)the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5)it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6)a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.[4]
[2][2014] VSCA 102 (Nettle, Redlich JJA and Almond AJA) (‘Kumar’).
[3]Unreported, Supreme Court of Victoria, 2 May 1975.
[4]Kumar [2014] VSCA 102 [8].
In Bowling v The Queen,[5] Redlich JA discussed the consequences of a failure to comply with the time limits prescribed under ss 275 and 279 of the Criminal Procedure Act 2009 (‘CPA’) for commencing an appeal. He said:
Where the time for filing a notice of application for leave to appeal has expired, then pursuant to s 313 of the Act, the Court or the Registrar of the Court of Appeal in accordance with the rules of Court, may at any time extend the time to do so. The applicant must show, however, that the circumstances are such that the discretion to extend the time in which the applicant should be permitted to file such a notice should be exercised in the applicant’s favour.
The time limits set out in the rules of Court are not to be treated as some empty formality. The rules are intended to ensure finality of the litigation and compliance with time limits will be required in the ordinary case. The applicant must generally place material before the Court which will persuade the Court that there are special and substantial reasons to extend the time.
The longer the time which has elapsed since the expiration of the prescribed period, the more special the circumstances will have to be. Where there is a considerable lapse of time, the practice of the Court is not to grant the extension unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed. These considerations have been repeated by this Court on numerous occasions.
An applicant who is dilatory or who has acted so as to indicate that they do not intend to appeal has no entitlement to an expectation that the discretion will be exercised in their favour. Even where the applicant demonstrates that there are substantial reasons for delay, if there has been a significant delay, the grant of anextension of time will ordinarily depend upon the applicant establishing that the decision is so attended by doubt as to render it likely that the appeal will succeed.
Even where the lapse of time is short, the applicant must show that the appeal has sufficient prospects of success. Thus, though a ground belatedly raised may have some merit, its merit may sometimes be overwhelmed by other considerations which tell against a grant of anextension of time.[6]
[5][2013] VSCA 87.
[6]Ibid [15]–[19] (citations omitted).
These principles have been consistently applied.[7] They must, however, be considered in conjunction with the observations in the joint reasons of French CJ, Hayne, Bell and Keane JJ (with whom Gageler J agreed) in Kentwell v The Queen[8] regarding the wide discretion to grant an extension of time within which to appeal. Although the case concerned New South Wales legislation,[9] the following reasons are equally applicable to the relevant provisions of the CPA:
In R v Young, the Court of Criminal Appeal observed that it is impossible to foresee all of the circumstances that may bear on the determination of an application to extend time in which to seek leave to appeal against a sentence. Correctly, the Court refrained from formulating any guideline for the exercise of the discretion, holding that the application was to be determined by asking whether ‘it is just under the circumstances that such an order should be made’. The wide discretion conferred on the Court of Criminal Appeal under the Act and Rules is to be exercised by consideration of what the interests of justice require in the particular case.
…
The [NSW] Act confers a right to appeal against conviction in stated circumstances and provides for an appeal against conviction and/or sentence with the leave of the Court. These provisions (among others) are exceptions to finality in the trial and sentencing of offenders. The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding. However, at least in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power.
Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted.[10]
[7]Kumar [2014] VSCA 102; Smith v The Queen [2013] VSCA 310; Soteriou v The Queen [2013] VSCA 328; Rehal v The Queen [2015] VSCA 81; Soo v The Queen [2015] VSCA 84; Evans v The Queen [2016] VSCA 11.
[8](2014) 252 CLR 601 (‘Kentwell’).
[9]Kentwell concerned ss 6(3) and 10(1)(b) of the Criminal Appeal Act 1912 (NSW). Section 313 of the CPA confers a similarly wide discretion.
[10]Ibid 613–4 [30]–[34] (citations omitted).
Applying these principles, we do not consider that the interests of justice require that the applicant should be granted an extension of time within which to appeal against his conviction.
Explanation for delay
First we must consider the applicant’s explanation for his delay in lodging his application for leave to appeal against conviction. As we have said, in his affidavit the applicant deposes that he believed that VLA had challenged both conviction and sentence. He further deposes that, upon discovering this error, he was unable to prepare his application for leave to appeal against conviction in a timely fashion because of the deleterious effect of imprisonment on his mental health.
There has been a considerable delay in bringing the EOT application. The applicant was sentenced on 24 July 2015 and his application seeking to challenge his conviction is therefore more than 12 months out of time.
Further, the explanation for that delay is quite unsatisfactory. The applicant asserts a belief that his legal representatives were lodging an appeal against his conviction as well as sentence. VLA did lodge an application for an extension of time to file a notice of appeal against sentence. That application was granted in October 2015. But the affidavit of the solicitor in support of that application deposed only to the fact that the applicant has at all times maintained his instructions that he wished to appeal against sentence. It would have been apparent from the reasons of Osborn JA, who refused leave in February 2016, that the only application he dealt with concerned the applicant’s sentence. The applicant has offered little by way of explanation for why he was able actively to pursue his sentence appeal in person but took no step with respect to an appeal against conviction until September 2016.
Merits of the proposed appeal against conviction
We turn to consider whether it is probable that the appeal would succeed. The applicant’s proposed ground of appeal is that the verdict delivered by the jury was unsafe and unsatisfactory. In accordance with the test stated by Hayne J in Libke v The Queen,[11] in order to succeed on the appeal the applicant must demonstrate that ‘the jury must, as distinct from might, have entertained a doubt’ about his guilt, that is, he is required to do more than ‘show there was material which might have been taken by the jury to be sufficient to preclude a satisfaction of guilt to the requisite standard.’[12]
[11](2007) 230 CLR 559.
[12]Ibid 596–7 [113] (emphasis in original).
The relevant facts are conveniently set out in the respondent’s written case:
2. The applicant, and his two co-accused, Amneet SINGH (Amneet) and Arvinder SINGH (Arvinder), were convicted after a trial.
3. In June 2013, members of the Australian Crime Commission (ACC) began an investigation during which they identified a major international drug syndicate operating out of Victoria. Information in relation to this syndicate and their criminal activities was forwarded to members of the Victorian Police Clandestine Laboratory Squad and a major drug investigation, codenamed GREENBONES, was established in relation to the criminal activities of this syndicate and their associates.
4. As a consequence of ACC investigations, the mobile telephones of the three offenders were monitored.
5. On 9 September 2013, criminal connections from India sent a consignment of eight large cardboard boxes to Gillsons Trading. The goods were described as 190 plastic jars of samples of hydropsulphite of soda and had a gross weight of 142kg. Each box contained about 24 falsely labelled 500g plastic jars. The jars contained the prohibited drug Ephedrine. A total of 18.59kg pure Ephedrine was imported.
6. It was not alleged the applicant, Amneet or Arvinder were responsible for or involved in the importation of the eight boxes however, each engaged in a joint criminal enterprise to traffick the drug by possessing it for sale.
7. Arvinder accepted the eight boxes, containing Ephedrine, from Amneet, and kept them at his property for 17 days. Arvinder was then to deliver the boxes to the applicant, who arrived in Australia from Canada on 2 October 2013.
8. On the previous day, and before the applicant boarded his flight to Australia, there was a call between Arvinder and an overseas boss. The call referred to the roles to be played by each of the three offenders in the joint criminal enterprise.
9. The applicant came to Australia with the intention of trafficking Ephedrine by possessing it for sale.
10. Once the applicant arrived from Canada, Arvinder assisted him to become established in the rural area selected, in order for him to keep a low profile. Arvinder assisted the applicant getting settled in a motel in Cobram; he assisted the applicant with his computer system; he assisted him in obtaining a phone, house and car.
11. On 12 October 2013, the applicant went to Melbourne and waited in the city until he received a text message to meet up with someone, who gave him $10,000 cash in connection with the trafficking of the drugs.
12. The applicant purchased a vehicle and rented a premises (the lease being six months) in Strathmerton.
13. There were a number of telephone calls between the applicant and Arvinder about receiving the drugs.
14. On 17 October 2013, the applicant took possession of six boxes located by police. The applicant intended to receive the remaining two boxes the following day however, the applicant was arrested a short time after the first six boxes were delivered.
15. The applicant intended to establish himself in Strathmerton for a lengthy visit, during which time, he would possess the drugs for sale.
16. It was not alleged the applicant was involved in the manufacture of amphetamines or ice, nor were there any actual sales or potential purchasers of the drugs.
17. The applicant and Arvinder were also found to be in possession for sale of an additional quantity of 2.17kg of pure Ephedrine which was located, by police, at the premises of the applicant, in a black lap top bag.
18. There were recorded conversations between the applicant and Arvinder, involving the delivery of the additional quantity of the drug, which may have been delivered before or on the day of the police raid.
19. The applicant gave evidence at trial, and denied any knowledge of the drugs. The applicant was disbelieved by the jury.
20. The applicant possessed for sale a total of 20.76kg of pure Ephedrine (27.7 times the large commercial quantity of the drug).
21. The amount of the drug was worth $519,375. It would have been converted to between 9.63kg and 15.58kg of methamphetamine (ice), which if sold in 1kg lots was worth between $1.92m to $4.97m; or $7.70m to $15.57m if sold in street ‘point’ deals of 0.1g.
22. The applicant expected to be financially rewarded for his participation in the joint criminal enterprise however, it is unclear as to how much the applicant was to actually receive.[13]
[13]Citations omitted.
The intercepted telephone calls summarised by the respondent provided particularly cogent evidence of the role played by the applicant in the criminal enterprise:
·Co-accused Amneet SINGH and Arvinder SINGH arranged to meet to enable Amneet SINGH to deliver eight boxes containing ephedrine to Arvinder SINGH in a town near Cobram, Victoria.
·Amneet SINGH’s involvement in this transaction ceased upon the delivery of the boxes. It is clear from the telephone intercept material Amneet SINGH’s role was to deliver product on behalf of others.
·
It is also clear on 1 October 2013 Arvinder SINGH was tasked to look after a friend of the Canadian caller (the applicant) upon his arrival,
obtain accommodation for him, give him all the goods and he (the applicant) would give him money in the order of $10–15,000.
·After the applicant arrived in Melbourne, Arvinder SINGH called the unknown male in Canada and advised he had picked up the applicant, kept him in a motel and that the applicant had asked for a car. Arvinder SINGH was advised to do this one small job for the Canadian caller, to find a car up to $10–15,000 which he would keep after the applicant had left and to look after the applicant. Arvinder SINGH made a call to Canada to a second unknown male and discussed the applicant’s request for a car and his need for a house on a farm. Arvinder SINGH was instructed to meet the applicant’s requests in addition to providing him with ephedrine. They then discussed Arvinder SINGH’s remuneration for his role.
·On 6 October 2013 the applicant asked Arvinder SINGH to obtain a phone for him that he could use locally. The applicant was reliant upon Arvinder SINGH and in some respects directed him to act as his driver and help him establish a house. This was consistent with the applicant being positioned above Arvinder SINGH in the hierarchy of the operation.
·On 15 October 2013 the applicant advised Arvinder SINGH he would need ‘that stuff’ either later today or the day after tomorrow. On 17 October 2013 the applicant contacted Arvinder SINGH and confirmed delivery of the ephedrine that day.
·Upon the applicant’s arrest, Arvinder SINGH called an unknown male and referred to the applicant as his boss.[14]
[14]Citations omitted.
It was the defence case that the applicant did not know that there were drugs of dependence in the boxes and bags. He argues that the evidence did not establish beyond reasonable doubt that he had the requisite intention to possess the ephedrine for sale. The applicant refers to R v Thang Duc Nguyen[15] and He Kaw Teh v The Queen[16] and submits that it must be shown that he had the intent to traffick in the prohibited substance and the particular quantity alleged. He relies upon the fact that there was no direct evidence that he was aware of the contents of the boxes, black laptop bag or yellow plastic bag, or that he intended to sell the drug. The evidence, he submits, shows only that his role was to store a number of boxes and that he believed these to contain laundry additive.
[15](2005) 12 VR 299.
[16](1985) 157 CLR 523.
No complaint is or could be made as to the judge’s directions to the jury. These were entirely in accordance with the reasoning of the majority of the High Court (Mason CJ, Deane and Dawson JJ) in Bahri Kural v The Queen,[17] which set out the basis upon which the requisite intent may be inferred in a circumstantial case.[18] In his charge the trial judge carefully explained to the jury the process of inferential reasoning relied on by the prosecution to establish that each accused knew that it was a prohibited drug that was in their possession and that it was possessed with the intention that it would be sold. The judge made clear that, in order to succeed, the prosecution must establish that that inference was the only inference reasonably open.
[17](1987) 162 CLR 502 (‘Kural’). A distinguishing feature of Kural was that the accused, who had been given a package by a complete stranger, containing a samovar, was asked to transport it to Tullamarine Airport, Melbourne, Australia, where it was to be picked up ‘as soon as’ he arrived at the airport by another stranger. The accused gave evidence that he had been concerned the package might contain drugs and so had opened it and visually inspected it (failing to locate the drugs hidden in the base of the samovar). The present applicant, however, made no attempt to inspect or enquire as to the contents of the boxes, black laptop bag and yellow plastic bag found in his possession.
[18]The reasoning in Kural has recently been discussed and approved by the High Court in Smith v The Queen (2017) 91 ALJR 621 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
Unlike his co-offenders Amneet Singh and Arvinder Singh, who stood mute, the applicant gave detailed evidence at trial. He testified that he thought the boxes contained laundry additives. His testimony forms part of the basis for his contention that the prosecution could not establish that he knowingly possessed the ephedrine for sale.
The trial judge in his sentencing remarks identified some of the reasons why it was well open to the jury to have rejected the applicant’s evidence:
In evidence you denied any knowledge of any drugs. You told a fanciful and ridiculous story about a chance meeting with a virtual stranger in a car park shortly before your departure from Canada. This person said his relative, who turned out to be Arvinder, could provide unspecified assistance to you in Australia. You had been to Australia a couple of times previously and you were a mature accomplished man of the world. It was not at all clear what sort of assistance a simple dairy farmer recently arrived in Australia from India might be able to provide to you. Shortly after your arrival in Melbourne, you claimed this person from Canada contacted you and that for the remarkable sum of $10,000 you innocently agreed to take delivery of some unspecified consignment on his behalf at some undetermined date to be stored at your then non-existent premises. Then you said you came to Melbourne on 12 October (which was true) and went to St Albans where you met a group of six Indians, complete strangers, who gave you $10,000 cash as the supposed storage fee. You said it never occurred to you that illegal drugs might be involved.[19]
[19]DPP (Cth) v Singh (Unreported, County Court of Victoria, Judge Howard, 24 July 2015) [14]–[15] (citations omitted) (‘Reasons’).
The applicant points to a number of criticisms which the trial judge made of the manner in which the prosecutor presented the Crown case against each accused to the jury. The trial judge had upbraided the prosecutor following his closing address for having failed to explain adequately which pieces of the evidence he relied upon in furtherance of the co-conspirators rule as stated in Tripodi v The Queen.[20]He further points to a series of critical statements made by the trial judge to the effect that the prosecution had not identified which pieces of evidence independently implicated each accused.
[20](1961) 104 CLR 1.
These criticisms made by the judge did not go to the strength of the prosecution case. They do not disclose any error that might have rendered the jury’s verdict unsafe and unsatisfactory. On the contrary, in the course of this criticism, his Honour observed that there was an abundance of independent evidence of each accused’s participation in the joint criminal enterprise which he intended to identify for the jury. No complaint is or could be made of the manner in which the trial judge charged the jury. He correctly identified the evidence that related to each accused and the circumstances in which evidence of the acts of one accused could be used in each case against the other accused.
We accept, as the respondent submits, that the evidence, when considered as a whole, points overwhelmingly to the conclusion that the applicant arrived in Australia for the sole purpose of drug trafficking and immediately involved himself with his co-accused to that end. It was well open to the jury to reject the applicant’s account and infer that he was aware of the existence of the drugs in his possession and that he intended to possess the ephedrine for sale. Indeed, it might well be said that any other conclusion would have been perverse. There is no reasonable prospect that the applicant could make out the contention that the jury’s verdict is unsafe and unsatisfactory.
For these reasons, the application for an extension of time within which to seek leave to appeal against conviction must be refused.
Proposed grounds of appeal against sentence
We turn to the applicant’s application for leave to appeal against sentence. His proposed grounds of appeal against sentence are:
(i)His Honour erred in his findings of fact in that the applicant was a more senior member in the conspiracy than his co-offenders
(ii)The sentence imposed was manifestly excessive because it is inconsistent with current sentencing practices.
The sentencing judge made the following observations as to the relative positions in the criminal hierarchy of the applicant and his co-offenders:
As I have said, I am satisfied that you, Amneet and Arvinder, should be treated as being at the same position in the criminal hierarchy for this offence. However, you both played a role beyond that of being a mere courier, serious as that would be by itself. You, Mr Mueller, played a higher, more responsible role than that of your co-offenders, given that you travelled specifically from Canada to Australia to substantially establish yourself in this country for a lengthy visit so you could possess the drug for sale. Clearly, the bosses in Canada, if not India as well, trusted you, Mr Mueller, to possess this vast amount of the drug for sale. They could have recruited any number of criminals in Australia to perform this task but obviously, you were hand-picked for the job. You were thus very close to the principals, although I am not able to conclude that you were one of the principals in the enterprise. For these reasons I do intend to pass a higher sentence upon you than for your co-offenders.[21]
[21]Reasons [45].
It was reasonably open to the trial judge to conclude, on all the evidence, including the applicant’s own admissions, that the applicant had a higher, more senior role than his co-offenders in the joint criminal enterprise and was very likely close to the principals. This inference is supported by the fact that he travelled to Australia in order to establish himself for a lengthy visit. He signed a six-month lease for a unit in a remote rural location, despite only having a three-month tourist visa, and thereafter swiftly proceeded to possess the drugs for sale. There was substantial circumstantial evidence from the telephone intercepts that Amneet Singh and Arvinder Singh regarded the applicant as their immediate ‘boss’, whose orders they were prepared to follow in subservience to higher bosses back in India. The conclusion was well open to the sentencing judge that the applicant occupied a more trusted position in the criminal hierarchy than his co-offenders.
Osborn JA considered the second proposed ground to be incorrectly formulated as it ‘does not simply assert manifest excess but asserts that such excess is demonstrated by inconsistency with current sentencing practices.’
As this Court stated in Nam Son Nguyen v The Queen[22] the range of sentences disclosed by current sentencing practice is not
determinative of the upper and lower limits of sentencing discretion. As the plurality stated in both Hili and Barbaro, the history of sentences in other cases from which a range may be drawn does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. The past does not fix the boundaries within which future judges must, or even ought, to sentence. As this Court has so often repeated, CSP does not create a ceiling or floor beyond which a judge may not go. A judge may conclude that the gravity of the offending is deserving of a sentence higher or lower than any previously imposed for an offence of that category of seriousness.[23]
[22](2016) 311 FLR 289.
[23]Ibid 313 [74] (citations omitted).
The cases upon which the applicant seeks to rely are not in any event comparable. The offenders in those cases did not travel from overseas to Australia with the sole intention of possessing a large commercial quantity of a drug of dependence for sale.[24] The quantity of ephedrine found in the applicant’s possession was approximately 27 times a large commercial quantity, and, according to expert evidence, was equivalent to around $7–15 million in ‘street value’.[25] Of all the cases to which the parties referred, the most relevant comparator was that of Dao v The Queen,[26] in which the quantity of heroin and methamphetamine was 30 times a large commercial quantity. Neither had relevant priors and in contrast with the applicant, both offenders entered pleas of guilty, although they were late pleas. The sentence imposed on each was 18 years’ imprisonment with a non-parole period of 13 years.
[24]See Mokbel v The Queen (2013) 40 VR 625; DPP v Holder (2014) 41 VR 467 (‘Holder’); Rizzo v The Queen [2011] VSCA 146. We note that, in Holder at 469 [2], the sentence of eight years and six months’ imprisonment with a non-parole period of five years and nine months was described by this Court as ‘a low sentence, well below what would ordinarily have been expected for such a large quantity’ of a drug of dependence (in that case, ecstasy).
[25]That is, if sold in ‘point’ deals of 0.1g, as outlined by the sentencing judge in his Reasons [17].
[26][2014] VSCA 93.
Notwithstanding the applicant’s prior good character, and his varied life experiences in his native Canada, we have reached the same conclusion as Osborn JA that it is not reasonably arguable that the sentence is manifestly excessive.
The application for leave to appeal against sentence must be refused.
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