1 I have had the benefit of reading in draft form the reasons for judgment of Priest JA. I agree with his Honour.

2 For reasons that follow, I am of the opinion that the appeal against conviction should succeed and the conviction on the second count on the Indictment should be quashed.

3 On the remaining count I would sentence the appellant to be imprisoned for five (5) years and six (6) months, and I would impose a non-parole period of three (3) years and four (4) months.

4 On 10 February 2012, the appellant pleaded guilty in the County Court at Melbourne to two drug offences under the Criminal Code Act 1995 (Cth) ('the Code'). Count 1 on the Indictment was a charge of possession of a marketable quantity of an unlawfully imported border controlled drug, cocaine;[1] and count 2 charged the manufacture of a marketable quantity of a controlled drug, cocaine.[2] As I will later explain, both of these charges related to the same quantity of cocaine.

5 Following a plea, on 20 February 2012 the appellant was sentenced to be imprisoned for six (6) years on the first count and for three (3) years on the second. The sentence on count 2 was ordered to be wholly concurrent with the sentence on count 1; and a non-parole period of three (3) years and nine (9) months was fixed. It should be noted that each of these offences is punishable by a maximum penalty of

6 Initially the appellant sought leave to appeal against sentence only. Some time later, however, the applicant sought an extension of time within which to file an application for leave to appeal against conviction, and that application was granted by the Registrar.

7 Subsequently, on 11 July 2012, Weinberg JA granted the appellant leave to appeal against both conviction and sentence.

8 So that the points of substance in these appeals might be appreciated, it is necessary to set out the facts in some detail.

9 Count 1 alleged that the appellant at Truganina between 18 March 2011 and 23 March 2011 possessed a marketable quantity of a border controlled drug, cocaine. The quantity of cocaine was a little under 1.7 kilograms, with an estimated value of approximately $560,000 (wholesale) and $800,000 (retail). The second count alleged that between 22 and 23 March 2011 the appellant, also at Truganina, manufactured the same cocaine for a commercial purpose.

10 It would seem that the starting point for the offences was a trip to South America made by Bashkim Gashi (a former employee of the appellant) and Gashi's girlfriend. The appellant gave $6,000 to Gashi to make this trip and, according to the appellant's version in his second police interview, provided Gashi with further money whilst he was overseas. On the appellant's account, these were loans. He told the police that Dritan Mehmeti (an old friend, then in the United States) had asked him to provide this assistance to Gashi.

11 Some time before 10 March 2011, Gashi's girlfriend returned to Australia via Fiji with a suitcase containing towels and clothing impregnated with cocaine.

12 By 18 March 2011 the appellant had collected the suitcase from Gashi and put it in the garage of his home in Dandenong. The appellant was arrested on 23 March 2011. His possession between those dates of the suitcase containing the towels and clothing impregnated with cocaine was the foundation of the first count.

13 On 17 March 2011, Mehmeti contacted the appellant requesting assistance with arrangements for the arrival in Australia of Adam Hiseni. The prosecution case was that Hiseni knew how to extract the cocaine from the towels and clothing.

14 Hiseni arrived in Melbourne on 18 March 2011. He was to be accommodated in a motel at Brunswick arranged by the appellant, and it was arranged that a unit owned by the appellant's wife in Truganina would be available for use.

15 Between 18 and 21 March 2011 the appellant and Mehmeti communicated about obtaining chemicals and equipment, and the appellant also had discussions with a friend, Fernandez, with a view to obtaining chemicals. The appellant also went to Bunnings Warehouse with Mehmeti and Hiseni and bought respirator kits, plastic tubs, bins and dry chlorine.

16 On 22 March 2011 the appellant and Hiseni were observed at Fernandez' factory in Dandenong, and later that day the appellant was observed at the unit in Truganina. In the evening, via the telephone, the appellant requested more chemicals from Fernandez, and he told Fernandez that the job was going well.

17 The police arrested the appellant on 23 March 2011 whilst he was driving towards the Truganina unit. Shortly thereafter they raided the unit, and found both Hiseni and Mehmeti present. In the course of their search of the unit, police found liquid being evaporated from a number of tubs in which clothing and towels were immersed, plus a number of tubs containing rags and clothing scraps. It was evident that the cocaine was being subjected to a process of removal by Hiseni and Mehmeti. The appellant's fingerprints were found on a pedestal fan being used to evaporate the liquid and on one of the tubs. Scales were also located.

18 Forensic analysis established that the liquid being evaporated contained a total of 1.692 kilograms of pure cocaine. The discarded rags also contained traces of cocaine.

19 When first interviewed by police the appellant denied knowing Hiseni or Mehmeti, and denied any knowledge of the suitcase or cocaine. He also denied owning a mobile phone.

20 On 2 June 2011, the appellant took part in a second record of interview with police. He continued to deny knowledge of the drugs. The appellant did, however, admit assisting Gashi with his trip to South America. He also admitted being in possession of the suitcase after Gashi's return and then assisting Mehmeti and Hiseni. The appellant claimed that he had assisted Gashi at Mehmeti's request. He told police that Mehmeti was in America when he asked the appellant to assist Gashi; and that Mehmeti had told him that Gashi was assisting a friend of Mehmeti's by transporting items from South America to Kosovo.

21 There are two grounds of appeal with respect to conviction:

(1) The appellant's conviction on Charge 1 (possession) should be set aside as not being able in law to stand together with his conviction on Charge 2 (manufacturing) because Charge 2 encompassed all the criminal conduct alleged against the appellant.

(2) The conviction on Charge 2 should be set aside because it was not possible to 'manufacture' a substance already in existence.

In my opinion, the second ground must be upheld.[3]

22 Manufacturing a marketable quantity of a controlled drug is proscribed by s 305.4(1) of the Code. So far as is relevant, it provides:

305.4 Manufacturing marketable quantities of controlled drugs

(1) A person commits an offence if:

(a) the person manufactures a substance for a commercial purpose;[4] and

(b) the substance is a controlled drug;[5] and

(c) the quantity manufactured is a marketable quantity.[6]

23 The definition of manufacture - which is critical to success on the second ground - is to be found in s 305.1, which provides:

305.1 Meanings of manufacture and manufactures a substance

(1) For the purposes of this Part, manufacture means any process by which a substance is produced (other than the cultivation of a plant), and includes the following:

(a) the process of extracting or refining a substance;

(b) the process of transforming a substance into a different substance.

(2) For the purposes of this Part, a person manufactures a substance if the person:

(a) engages in its manufacture; or

(b) exercises control or direction over its manufacture; or

(c) provides finance for its manufacture.

24 It will immediately be noticed that manufacture means any process by which a substance is produced. In this case, the substance that was said to have been produced was cocaine. The respondent placed considerable reliance on sub-s (1)(a), which provides that manufacture includes 'the process of extracting ... a substance' (the substance in this case, of course, being cocaine).

25 As I understand the appellant's arguments, it is submitted that the key to unlocking the meaning of 'manufacture' is the use of the word 'produced'. The appellant submits that contextually, 'produced' means 'brought into existence'. As the cocaine being extracted from the towels already existed as cocaine, the appellant did not bring a new 'substance' into existence.

26 Although my brief paraphrasing of the respondent's arguments is unlikely to do them complete justice, I understood the respondent to submit that s 305.1 extends the ordinary meaning of the word 'manufacture'. Emphasis is placed on the expression 'process of extracting or refining a substance' in sub-s (1)(a) of the definition; and it is submitted that such an expression contemplates that the substance produced was already in existence, albeit possibly in a different form. The respondent also submits that the reference in sub-s 1(b) to 'transforming a substance into a different substance' dictates the view that manufacture may or may not involve such transformation. In construing the definition, it is submitted that a narrow approach to legislation such as this is not warranted.[7]

27 The ordinary meaning of the word manufacture is to make something out of something else.[8] Much of the legislation dealing with illicit drugs to be found in different jurisdictions, however, provides a statutory definition of manufacture.[9] So it is with the Code.

28 Section 305.1(1) sets out what manufacture 'means'. As a matter of construction, use of the word 'means' in a statutory definition connotes an exhaustive definition.[10] And usually the use of the word 'includes' in a statutory definition is intended to give an extended meaning to the ordinary meaning of a word. [11] In this case the respondent submits that the use of the word 'includes' in s 305.1(1) suggests that the expression 'process of extracting ... a substance' in sub -s (1)(a) extends the statutory meaning of manufacture.

29 In my opinion, the expression 'the process of extracting ... a substance' is epexegetical of the phrase 'any process by which a substance is produced'. As a matter of ordinary language, a substance is 'produced' if it is brought into existence from other materials having chemical or physical properties resulting in a new substance; and a 'process' imports a method of operation.[12] Thus in the context of this case, without torturing the statutory language, 'manufacture' ordinarily would convey a method of operation by which a 'substance', cocaine, was brought into existence from other materials. Viewed in this way, it may readily be gleaned that the phrase 'the process of extracting ... a substance' is used in further definition of the primary meaning given to manufacture. Indeed, to extract a substance (in this case cocaine) probably means no more than to produce the substance by chemical or other means.[13] As Francis Bennion observed in his respected work on statutory interpretation:[14]

Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court. It is impossible to cancel the ingrained emotion of a word merely by announcement.

30 Despite the definition of manufacture which is peculiar to the Code, the respondent's counsel sought to call in aid what was said in Thomas.[15] In that case, however, the Court of Criminal Appeal (NSW) was called upon to construe a statutory definition, which included the concept of manufacture, found in s 6 of the Drug Misuse and Trafficking Act 1985 (NSW); and held that in the context of that legislation, 'a legislative intention that is inconsistent with any narrow or pedantic approach to the description of activities connected with bringing prohibited drugs into existence' could be discerned.[16] So, too, in Randylle,[17] the Court of Criminal Appeal (SA) found that the particular piece of legislation then under consideration, which dealt with manufacture of drugs, was intended to have a wide reach.[18] These cases do no more, however, than illustrate that the legislative intention in any given case must be derived from the words used in the particular statute.

31 Out of deference to the submissions of the respondent's counsel, I should also refer to Spicer,[19] upon which he placed a good deal of reliance. Section 3 of the Drug Misuse and Trafficking Act 1985 (NSW) provided that except in so far as the context or subject matter otherwise indicates or requires, 'manufacture' in relation to a prohibited drug includes 'the process of extracting or refining the prohibited drug'. In that case the appellant was convicted of manufacturing methylamphetamine. On appeal he argued that he could not be convicted of manufacturing, submitting that the process of manufacture was complete in circumstances where the relevant methylamphetamine existed in liquid form, but required the addition of hydrochloric acid to convert the liquid into crystal form. The prosecution had, however, based its case on that part of the definition which concerned refining a prohibited drug. Such refinement required a further step in the process by the addition of hydrochloric acid. In any event, the case must be viewed against the backdrop of the legislation then under examination.

32 I am mindful that one must always be cautious in endeavouring to assign alternative expressions for the language actually used in the statute under consideration. As I have observed, however, in my opinion, when the words of s 305.1(1) are given their ordinary, natural and grammatical meaning, they convey that for a person to be guilty of an offence under that section the person must bring a substance into existence from other materials having chemical or physical properties resulting in a new substance.

33 In this case, the relevant 'substance', cocaine, was already in existence in the impregnated towels and clothing. Thus, in employing a process to retrieve the cocaine from the towels and clothing the appellant was not extracting any new 'substance' - the substance had already been manufactured. As counsel for the respondent agreed in oral argument on the appeal, the substance that was in the towels and clothing was cocaine, and the substance that came out of the towels and clothing was cocaine.

34 However, despite acknowledging that cocaine existed in the towels, counsel for the respondent nevertheless submitted that the cocaine in this case was 'manufactured', since it was changed from a state where it was inaccessible and unusable into one where it was accessible and usable. In my opinion, however, that submission cannot be accepted, since, properly characterised, the relevant process was not one where cocaine was brought into existence from other materials, but one where there was the physical removal of an impediment to the use the cocaine (which was already in existence).

35 It is easy to imagine hypothetical cases to attempt to illustrate that, as a matter of ordinary language, 'extracting' is not necessarily incidental to 'manufacturing'. To break open a container by force in order to retrieve a substance and to place it into alternative packaging might, on one view, to be considered 'extracting' the substance, but it would not be to bring the substance into existence. Similarly, to beat a Oriental carpet in order to release an illicit drug suspended within it might be 'extracting' the drug, but it would not be to produce the drug.

36 One thing is clear. At all relevant times during the process which was under way at the unit, the 'substance' concerned was cocaine. It did not change from cocaine into another substance, or from another substance into cocaine. Taken at its highest, therefore, the prosecution evidence was incapable of establishing that the appellant was guilty of manufacturing cocaine.

37 For these reasons the conviction and sentence on count 2 must be set aside.

Appeal against conviction allowed despite a guilty plea

38 As has been observed, the appellant pleaded guilty to the count of manufacturing a controlled drug. That plea should not present an insurmountable obstacle to success, however, on the appeal against conviction. By virtue of s 276(1)(c) of the Criminal Procedure Act 2009 the question for the Court must always be whether there has been a 'substantial miscarriage of justice'. If there has been, then the Court must allow the appeal. I am satisfied that there has been a substantial miscarriage of justice and that the appeal must be allowed.

39 I should add some further observations. Under the provisions of the common form criminal appeal statutes (which in Victoria have been replaced by s 276) an appeal against conviction would only be entertained following a plea of guilty in exceptional circumstances.[20] If the test remains one of exceptional circumstances, then I would find that they exist.

40 The seminal statement is that of Avory J in R v Forde:[21]

A plea of guilty having been recorded, this court can only entertain an appeal against conviction if it appears: (i) that the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or (ii) that upon the admitted facts he could not in law have been convicted of the offence charged.

41 It has been said that the propositions formulated by Avory J 'will be found to provide a sound guide to be followed in most, if not all, cases,[22] but they are not exhaustive'. Thus, in R v Murphy[23] Sholl J said:

The question for the Court always is whether there has been a miscarriage of justice, and if there has, the Court is under a mandatory obligation to set aside the conviction ... Most of the reported cases can, it is true, be fitted into the principles formulated in R v Forde [1923] 2 KB 400. But they should not be regarded as exhaustive of all possible cases of miscarriage of justice.

42 In R v Pauli[24] an appeal against conviction was allowed after a guilty plea in circumstances where the applicant had admitted involvement in 13 counts of arson, yet he pleaded guilty to 20 counts. Convictions on seven counts were set aside, the case falling within the second of the Forde principles (that is, upon the admitted facts, the applicant could not in law have been convicted of the offences charged). The court observed that:[25]

[T]he question for ultimate determination is whether there has been demonstrated a miscarriage of justice.

43 And, as has been observed, although the two criteria in Forde (as adopted in R v Stewart)[26] 'are part of the resolution of the question of whether there has been a miscarriage of justice in a particular case', those criteria are not an exhaustive statement of circumstances in which a miscarriage of justice may have occurred. Indeed, the cases are legion which support the view that, despite a plea of guilty, the question the Court must always ask is, has there has been a miscarriage of justice?[27]

44 It is undisputed that the appellant had offered to plead guilty to a single count of possession of a controlled drug as embraced by the first count on the Indictment. But it is also undisputed that the respondent insisted on a guilty plea to a count of manufacturing a controlled drug; and that, unless the appellant pleaded guilty to a count of manufacturing, as reflected in the second count, then he would have to stand his trial on that count. Whether the prosecution exercised its prosecutorial discretion properly in the circumstances need not be explored,[28] but to say the least it is unfortunate that the appellant has had to approach this Court to bring about a state of affairs which might have been achieved with the exercise of some earlier forbearance.

45 As I have said, in my view there has been a substantial miscarriage of justice. If I needed to, I would also find that exceptional circumstances exist that, despite the plea of guilty, demand the intervention of this Court. The appeal against conviction must succeed on the second ground of appeal, and the conviction and sentence on count 2 must be quashed.

46 The conclusions I have reached on the second ground of appeal against conviction make it unnecessary to consider the first, which in essence claimed that the conviction on the possession charge should be set aside because the manufacturing charge 'encompassed all the criminal conduct alleged' against the appellant. I will, however, make some observations pertinent to the thrust of this ground below.

47 The Court having set aside the conviction and sentence on count 2, it is clear that the sentencing discretion - both with respect to the head sentence and non-parole period - is reopened on the first count. Section 277(3) of the Criminal Procedure Act 2009 provides:

(3) If the Court of Appeal sets aside the conviction of offence A, it may vary the sentence that -

(a) was imposed for an offence other than offence A at or after the time when the appellant was sentenced for offence A; and

(b) took into account the sentence for offence A.

48 It may be seen that s 277(3) permits the adjustment of the sentence remaining on count 1 after the conviction on count 2 is set aside; since s 277(3) allows the court to vary a sentence passed for an offence (other than the offence for which the conviction is set aside), so long as that sentence took into account the sentence passed in relation to the offence for which the conviction was set aside.[29]

49 Plainly the sentencing judge 'took into account the sentence for offence A' (count 2, the manufacturing count) when a sentence 'was imposed for an offence other than offence A' (count 1, the possession count), since he made orders as to the commencement of the sentences which effected complete concurrency between them.

50 Given that the sentencing discretion is reopened with respect to the sentence to be imposed on the first count - and the parties having indicated that they are content for this Court to resentence - it is strictly not necessary to say anything about the sentence appeal, since it falls away. Out of respect for the thorough and thoughtful submissions of the parties, however, I think I should make some further brief observations before turning to the matter of resentence.

51 The first ground of appeal against sentence claimed that the sentence was manifestly excessive, and the second, that the judge had 'erred in finding that the appellant expected to earn more than $10,000 by his involvement in the offending'. The third alleged that the sentence on the first count 'amounted to double punishment'.

52 As to the first and second ground, it is enough to say, I think, that I am not satisfied that either would have been made out.[30] There was, however, merit in the 'double punishment' ground, ground 3, although it too falls away as a result of my conclusions on the conviction appeal. However, since the issue of double punishment was fully argued, in deference to the industry of the parties I offer the following comments.

53 When dealing with federal offences, any examination of the notion of 'double punishment' must start with s 4C of the Crimes Act 1914 (Cth).[31] Subsection (1) relevantly provides:[32]

4C Offences under 2 or more laws

(1) Where an act or omission constitutes an offence:

(a) under 2 or more laws of the Commonwealth; or

(b) both under a law of the Commonwealth and at common law;

the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth or at common law, but shall not be liable to be punished twice for the same act or omission.

54 Section 4C(1) is expressed in terms similar to s 51 of the Interpretation of Legislation Act 1984 (Vic). Section 51, and the prominent cases dealing with the topic of double punishment, were recently considered by Maxwell P (with whom Hollingworth and Cavanough AJJA agreed) in Lecornu.[33] I would not do justice to his Honour's searching examination of the topic by attempting to paraphrase his conclusions, but having had the benefit of his Honour's analysis, I think I can express my views on the issue as it arises this case with some brevity.

55 Lecornu involved the appellant being convicted and sentenced for both child pornography offences and breaches of an extended supervision order under the Serious Sex Offenders Monitoring Act 2005 (Vic) ('the Monitoring Act'). Significantly, the conduct which in each case gave rise to the two child pornography offences was the very conduct which gave rise to the corresponding two breach offences. The appellant argued that the rule against double punishment - both at common law and under s 51 - had been infringed. Neither the appellant's appeal against conviction, nor his appeal against sentence, succeeded. The Court held that Parliament plainly had contemplated that, where a relevant condition of the Monitoring Act was breached, two distinct offences would have been committed.[34]

56 In my opinion, in a case like this, attention must be focused on the act or omission said to constitute the offence. If an act or omission constitutes an offence under two or more laws then a person may be prosecuted and punished[35] under those two or more laws, so long as the person is not being punished twice for the same act or omission. Determining whether there is a single act or omission, or more than one act or omission, which constitutes a breach of more than one law, may not always be - as the cases demonstrate - an easy task. It will often involve judgment as to matters of fact and degree. But I do not think that the task should be attended by 'excessive subtleties and refinements'.[36] The task needs to be approached as a matter of common sense, not semantics.[37]

57 The common law position was described in Pearce.[38] In that case the Court found that the appellant had been subjected to double punishment, in circumstances where he was convicted and sentenced for both malicious infliction of grievous bodily harm, and breaking and entering a dwelling-house and inflicting grievous bodily harm therein. It was observed:[39]

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law. There is nothing in s 33 or 110 of the Crimes Act more generally which suggests that Parliament intended that an offender such as the appellant should be twice punished for his inflicting grievous bodily harm on his victim. Nor do we consider that any such intention can be gathered from s 57 of the Interpretation Act 1987 (NSW). As stated above, that section merely supplements and does not supplant the practice or rule with which we now deal.

It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics.

58 In this case, there was no argument that the appellant did not have possession of the cocaine during the whole period alleged - his possession being the relevant act - and that the removal took place during that possession. (As we have said, however, as a matter of law conviction on the manufacturing charge was not open.) Had the evidence established, however, that the appellant had indeed manufactured cocaine in the unit (in the sense we have discussed), and thereby come into possession of it, then the possession of the drug so produced might well be regarded as part and parcel of the manufacture. By the same token, whilst the cocaine was in his possession, had he transported the cocaine with the intention of selling it, or simply possessed it with the intention of selling it,[40] he might have fallen to be convicted of trafficking a controlled substance,[41] but not both trafficking and possession (particularly where the prosecution seeks to rely on a presumption as to intention based on possession of a particular quantity of the drug).[42] Indeed, in the sphere of illicit drugs, there have been a number of cases where convictions for possession offences have been struck down where the fact of the possession has been

foundational of convictions for trafficking,[43] or where convictions for trafficking and cultivation arise out of the same acts.[44]

59 Of course, every case must yield to its particular facts. There was no occasion to consider whether the conviction on count 1 should be set aside since we have determined that on the evidence in this case, as a matter of law he could not have been convicted of manufacturing.

60 It is plain that the sentencing judge was troubled by the fact that the appellant had pleaded guilty to both possession and manufacture, and queried whether, in the circumstances of this case, the two could stand together. He was, however, faced with pleas of guilty and was thus somewhat powerless to do other than express his disquiet.

61 The sentencing reasons were careful. His Honour stated that whilst the appellant was not to be sentenced for the importation of the cocaine into Australia, he was in possession of it shortly after its arrival and was directly involved in the conversion of the substance into a form that would allow for its distribution. The judge also found that the appellant offended for financial gain and, although he was not able to determine the extent to which he would have profited from the offending, he did not accept that he expected to receive $10,000 following the completion of the chemical process, as was submitted by counsel. The judge found that the appellant's role in the offending was significant and that he expected to profit more considerably than the sums submitted by counsel.

62 The appellant is now aged 40. He came to this country from Albania, via Italy, in 1999. He worked as a painter and builder until injured in 2007. He is married with two young children. He has no prior convictions.

63 There were a number of mitigating factors which the sentencing judge referred to and accepted, including the early pleas of guilty; some limited admissions to police; the absence of prior convictions; a good work history; family support; and family hardship. Significantly, the judge found the existence of a psychological condition (anxiety, depression and panic attacks) to be causally connected to offending, thus leading to reduced moral culpability and a concomitant moderation of general deterrence. Importantly, he also found that imprisonment would be more onerous for the appellant due to his psychological condition.

64 During argument on the appeal, without objection from the respondent, the Court received an updated report from a forensic psychologist, Pamela Matthews, dated 30 December 2012. The report indicated that the appellant continued to suffer from agoraphobia, against a background of generalised anxiety, but that his emotional state had significantly worsened following incarceration, with the emergence of somatic symptoms. Since the discretion as to sentence is reopened, it is legitimate to pay due regard to the fact that the appellant's psychological condition has worsened since being imprisoned.

65 I need not recite the factors that the Court is required to bear in mind when imposing sentence. Many are set out in s 16A of the Crimes Act 1914 (Cth), and I have taken them into account. This was a serious offence, involving the possession of a substantial quantity of cocaine, thus enlivening general deterrence as an important consideration. No sentence other than imprisonment is appropriate in the circumstances.

66 Synthesising, as best I am able, all relevant features, I would sentence the appellant on count 1 to be imprisoned for five (5) years and six (6) months, and would order that he serve a period of three (3) years and four (4) months before being released on parole. I would declare pre-sentence detention of 712 days.

67 In so far as s 6AAA of the Sentencing Act 1991 may apply, I declare that but for

the plea of guilty, I would have imposed a sentence of seven (7) years' imprisonment with a non-parole period of five (5) years.

68 By virtue of s 16F of the Crimes Act 1914 (Cth), the Court must 'explain or cause to be explained' the several matters spelled out in the section. As has become the practice, I would request that the appellant's legal practitioner who appeared on the appeal undertake that task.

69 I have also had the advantage of reading the reasons of Priest JA in draft form. I agree with his Honour's reasons.

[3] Although they were not submitted as alternatives, it is obvious that both grounds cannot succeed simultaneously. Logically, ground 1 must be seen as an alternative to ground 2.

305.2 Meaning of manufactures a substance for a commercial purpose

For the purposes of this Part, a person manufactures a substance for a commercial purpose if the person manufactures the substance:

(b) believing that another person intends to sell any of it.

[5] Cocaine is a controlled drug by virtue of s 300.2 and s 314.1 of the Code.

[6] By virtue of s 300.2 and s 314.1 of the Code, a marketable quantity of cocaine is 250 grams.

[7] For that proposition, the respondent relies on R v Thomas (1993) 67 A Crim R 308, 310, and R v Randylle [2006] SASC 318; (2006) 95 SASR 574.

[8] Commissioner for Taxation (Cth) v Jack Zinader Pty Ltd [1949] HCA 42; (1949) 78 CLR 336, 343 (Dixon CJ); McKeagg v R [2006] WASCA 26; (2006) 162 A Crim R 51, 59 [49] (Murray AJA).

[9] By way of example, the definition of manufacture in the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) 'includes the process of refining, manipulating or mixing any poison or controlled substance (including a poison or controlled substance in the raw state)' (s 4); and in relation to a drug of dependence, the expression 'traffick' includes 'manufacture' (s 70).

[10] R v Scott & Downland Publications Ltd [1972] VicRp 77; [1972] VR 663, 665 (Menhennitt J).

[11] Zickar v MGH Plastic Industries Limited (1995) 187 CLR 310, 329-30 (Toohey, McHugh and Gummow JJ); compare Sherritt Gordon Mines v Commissioner of Taxation (Cth) [1977] VicRp 42; [1977] VR 342, 353 (McInerney J).

[12] An example familiar in the area of illicit drugs might be the production of methamphetamine. A precursor chemical, pseudoephedrine, requires mixture with other substances, and a series of other steps in a process, before the substance methamphetamine is produced.

[13] See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 [78].

[14] F A R Bennion, Bennion on Statutory Interpretation, (5th Ed, 2008), 562, citing R G F Robinson, Definition, (1950), 77. See also Borazio v Melbourne City Council [2010] VSC 620, [16] (Cavanough J).

[15] R v Thomas (1993) 67 A Crim R 308, 310.

[17] R v Randylle [2006] SASC 318; (2006) 95 SASR 574.

[19] R v Spicer [2003] NSWCCA 108; (2003) 139 A Crim R 206.

[20] R v Murphy [1965] VicRp 26; [1965] VR 187, 190.

[21] R v Forde [1923] 2 KB 400, 403 (emphasis added).

[22] R v Murphy [1965] VicRp 26; [1965] VR 187, 188.

[23] R v Murphy [1965] VicRp 26; [1965] VR 187, 190 (emphasis added).

[24] R v Pauli (1991) 55 A Crim R 297..

[26] R v Stewart [1960] VicRp 16; [1960] VR 106.

[27] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157; DHC v The Queen [2012] VSCA 52; Guariglia v The Queen (2010) 208 A Crim R 49; R v Vasic [2005] VSCA 38; (2005) 11 VR 380; R v Pugh [2005] SASC 427; (2005) 158 A Crim R 302; R v Beary [2004] VSCA 229; (2004) 11 VR 151; R v Coffey [2003] VSCA 155; (2003) 6 VR 543; R v GJB [2002] VSCA 54; (2002) 4 VR 355; R v O'Sullivan [2002] NSWCCA 98; (2002) 128 A Crim R 371; R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310; R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233; R v Tait [1996] VicRp 48; [1996] 1 VR 662; R v O'Connor (1992) 59 A Crim R 278; R v Kardogeros [1991] VicRp 19; [1991] 1 VR 269; R v Liberti (1991) 55 A Crim R 120; R v Collis (1989) 43 A Crim R 371; R v Vella (1984) 14 A Crim R 90.

[28] We were told that the respondent sought to avoid the perceived strictures flowing from R v Newman & Turnbull [1997] 1 VR 146.

[29] Since the statutory formula differs, care must be taken in considering cases based on the former legislative regime contained in Part VI of the Crimes Act 1958. The former regime was considered in R v Gibb [1997] 2 VR 576; Ryan v The Queen [1982] HCA 30; (1982) 149 CLR 1; R v McL [1998] VSCA 61; [1999] 1 VR 746; and McL v The Queen [2000] HCA 46; (2000) 203 CLR 452. See also Longley v The Queen (2001) 121 A Crim R 78.

[30] Weinberg JA refused leave to appeal on these grounds on 11 July 2012; but the by a Notice of Election filed 2 August 2012, the appellant sought to have the application for leave on these grounds considered by an expanded bench.

[31] The equivalent State provision is s 51 of the Interpretation of Legislation Act 1984.

[33] Lecornu v R & The Department of Justice [2012] VSCA 137.

[35] The imposition of a conviction, without more, relevantly is to be punished: Sentencing Act 1991, s 7; R v Sessions [1998] 2 VR 304, 313 (Hayne JA), 323 (Eames JA).

[36] Pearce v The Queen (1998) 194 CLR 610, 623 [42] (McHugh, Hayne and Callinan JJ).

[39] Ibid 623 [40]-[42] (citations omitted; emphasis added).

[40] See the definition of traffics in s 302.1 of the Code.

[41] For example, see ss 302.2, 302.3 and 302.4 of the Code.

[43] Reardon v Baker [1987] VicRp 72; [1987] VR 887; R v Glaister (1997) 92 A Crim R 161; R v Langdon [2004] VSCA 205; (2004) 11 VR 18; R v Bidmade [2009] VSCA 90; R v Doherty [2009] VSCA 93. Compare R v Nor [2005] VSCA 46; (2005) 11 VR 390. See also R v Ahmed [2007] VSCA 270; (2007) 17 VR 454.

[44] R v Ngo [2007] VSCA 240; R v Filipovic [2008] VSCA 14; (2008) 181 A Crim R 83.