Blango v The Queen [2018] VSCA 210

1 On 24 October 2016, the appellant pleaded guilty to the charges set out in the following table. On 18 August 2017, he was sentenced as set out in that table.[1]

Attempt to possess a commercial quantity of an unlawfully imported border controlled drug (methylamphetamine)

[Criminal Code 1995 (Cth) ss 11.1(1), 307.5(1)]

Attempt to possess a marketable quantity of an unlawfully imported border controlled drug (heroin)

Attempt to possess a marketable quantity of an unlawfully imported border controlled drug (cocaine)

Section 6AAA Declaration: 21 years with a non-parole period of 17 years

2 Charges 1 and 2 are rolled up charges, representing 33 and four separate instances of criminality, respectively. The appellant was charged with attempting to take possession of the imported drugs rather than for importing them because the intervention of law enforcement authorities prevented him from taking possession.

3 The appellant sought leave to appeal against his sentence on four grounds. Priest JA granted him leave to appeal on only one of those grounds, namely, that '[t]he sentence on charge 1, and the total effective sentence, are manifestly excessive.'[2] At the hearing of the appeal, the appellant sought leave to amend that ground so that it read '[t]he sentence on charges 1, 2 and 3, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive.' As there was no objection from the Crown, we granted the appellant leave to amend the ground.

4 For the reasons that follow, the appeal will be dismissed.

5 Between 25 February 2015 and 19 June 2015, the appellant attempted to possess 33 consignments containing methylamphetamine ('ice'). The pure quantities of the consignments ranged from 160 grams to 10.815 kilograms, with an aggregate quantity of 55.9578 kilograms of ice (charge 1). A commercial quantity of ice is 750 grams. The estimated street value of the ice was between $31 million and $61 million, and the wholesale value was estimated to be $6 million.

6 Between 22 March 2015 and 19 June 2015, the appellant attempted to possess four consignments containing heroin (charge 2). The aggregate pure quantity of heroin was 725.3 grams. A marketable quantity of heroin is 2 grams and a commercial quantity is 1.5 kilograms. The estimated street value of the heroin was $217,500.

7 Between 17 June 2015 and 19 June 2015, the appellant attempted to possess one consignment containing 28.89 grams of pure cocaine (charge 3).[3] A marketable quantity of cocaine is 2 grams and a commercial quantity is 2 kilograms. The estimated street value of the cocaine was $8,600.

8 The appellant was a member of a criminal syndicate that imported and distributed border controlled drugs in Victoria. His role was to take possession of large numbers of consignments that arrived into Australia every two to three days, primarily from China, but also from India, Malaysia, Mexico and Malawi. He provided addresses to which consignments containing drugs were sent, with the ultimate intention of possessing those consignments. He made enquiries with freight companies about delivery of consignments and sometimes changed the delivery address to reduce the risk of detection.

9 The Australian Federal Police had monitored the appellant's activities during the period of the offending as part of a drug operation. They intercepted telecommunications services used by the appellant, including services with telephone numbers that corresponded to supposed consignees, and were registered to fictitious names to avoid detection. Approximately 600 conversations relating to the appellant were intercepted.

10 On one occasion, in relation to a consignment the subject of charge 1, the appellant continued to contact a delivery company and attempt to obtain possession despite having being informed multiple times that delivery of the consignment had been delayed due to the involvement of customs officials.

11 On 3 June 2015, police attempted a controlled delivery. The appellant spoke with an undercover police officer posing as an employee of a delivery company. He asked for a consignment for 'Andrew Murgan' to be redirected to a different address and, when the police officer arrived at that address to deliver the parcel, no one was home. The police officer called the appellant, who answered as 'Andrew', at 10:50 am. The appellant asked that the parcel be left at the premises but the police officer refused. The appellant ended the call, but at 10:54 am he telephoned the police officer to again ask for the consignment to be left at the address. The appellant became agitated and swore at the police officer.

12 The police investigation also revealed that the appellant trafficked in imported drugs, frequently negotiating sales valued from $5,000 to more than $100,000, and sometimes conducted sales himself. In the course of negotiating a sale on 4 April 2015, he described his role as follows:

I am not a dealer ... I'm a distributor ... A dealer is somebody that sells one gram, two gram, even twenty eight. I don't want to do it ... I like selling the whole thing in a block, bulk, like that, take it and go.

13 The appellant was arrested on 19 June 2015. Police seized $18,300, three laptop computers and four mobile telephones, together with a money transfer document and a driver's licence in separate false names. The appellant denied the offending. However, on 24 October 2016, the day on which his trial was due to commence, he pleaded guilty.

14 The appellant was aged between 30 and 31 years at the time of the offending and was 33 years old when he was sentenced.

15 He was born on 15 March 1984 in Sierra Leone and is the oldest of nine half-siblings. His parents separated when he was seven years old. From 1992 until 2000, after civil war broke out in Sierra Leone, he and his mother lived in a displaced persons camp. During the civil war, he was exposed to violent behaviour, including indiscriminate public killings when rebel forces invaded Freetown on 6 January 1999. This instilled in the appellant a 'survival of the fittest' mentality and he had difficulty with obeying rules.

16 In 2000, the appellant's father fled to Ghana and in 2001, when he was 16 or 17 years old, the appellant joined his father. The appellant lived in a refugee camp in Ghana with his father and five of his half-siblings until 2005 when they migrated to Australia as refugees and settled in Launceston. The appellant attended TAFE to improve his English and attended Launceston College for Year 11. He holds a subclass 200 refugee visa, which allows him to remain in Australia indefinitely.

17 The appellant moved to Hobart, where he married, before moving to Melbourne in 2008. The appellant's wife and her three children from a prior relationship joined him in Melbourne in 2010. The appellant and his wife have three children together who, at the time of sentencing, were aged 10, seven and two. The appellant's youngest child was born while he was in custody for the current offending.

18 After moving to Melbourne, the appellant worked in various labouring jobs, including one year as a supervisor in a residential insulation installation company.

19 A number of character references were tendered on the plea, including from the appellant's father and members of the Sierra Leone community in Melbourne. The references described the appellant as an active member of that community who participated in and organised community events and fundraisers. They stated that he was a polite, well-behaved man and a caring father. A number of the references indicated that he felt remorse for his offending and the impact it has had on his family and community. They also said that, on his release, he will have the support of the community.

20 The appellant does not have any history of mental illness or drug addiction. However, counsel for the appellant on the plea indicated that the appellant abused alcohol, and that during the period of offending he was drinking up to two bottles of spirits each day.

21 The appellant has a prior criminal history in Victoria, New South Wales, Queensland and Tasmania. His prior offending, excluding (unless relevant) an extensive list of motor vehicle offences in each of those States, is summarised below.

22 On 17 October 2007, the appellant was dealt with in the Launceston Magistrates' Court for various offences, including disorderly conduct, failing to appear (two offences), common assault (two offences), breach of an interim restraining order, breach of bail (two offences), and breach of a family violence order. He was sentenced to three months' imprisonment, suspended upon entering into a good behaviour bond for 12 months.

23 On 12 November 2008, the appellant was dealt with in the Hobart Magistrates' Court for disorderly conduct, resisting a police officer, failing to comply with directions of a police officer and stating a false name and address. He was convicted and fined.

24 On 11 January 2011, the appellant was dealt with in the Sunshine Magistrates' Court for intentionally causing injury and failing to answer bail. He was placed on a community based order ('CBO') for 6 months.

25 On 2 March 2011 the appellant was dealt with in the Sunshine Magistrates' Court for driving while disqualified. He was sentenced to 1 month's imprisonment, suspended for 6 months. On 4 May 2011, the appellant was again dealt with in the Sunshine Magistrates' Court for driving while disqualified. His suspended sentence was restored. Also on that date, he was dealt with for intentionally damaging property and assault with a weapon, for which he was sentenced to an aggregate sentence of 1 month's imprisonment, suspended for 18 months. He was dealt with again on 19 August 2011 for breaching his CBO, intentionally causing injury, failing to answer bail and damage to property. His CBO was varied to 12 months and he was fined $450.

26 The appellant was again dealt with by the Sunshine Magistrates' Court on 22 February 2013 for various offences, including recklessly causing injury, resisting police, stating a false name, theft from a motor vehicle, contravening a family violence intervention order, making a threat to kill and assaulting police. He was sentenced to a 2-year community correction order ('CCO'). That offending also contravened the appellant's existing CBO, which was confirmed.

27 On 31 January 2014, the appellant was dealt with in the Sunshine Magistrates' Court for breaching his CCO. The charge was adjourned for 12 months without conviction and was subsequently dismissed.

28 The judge regarded the appellant's offending as of the 'utmost gravity' and his offences as 'grave' and 'serious'.[4] In doing so, he stated that while the appellant's precise role in the drug importation syndicate could not be identified, he was nevertheless involved in 'a senior and trusted managerial capacity',[5] and his offending occurred over a period of months and involved significant quantities of different drugs. He noted that the appellant had described himself as a 'distributor' and negotiated high value transactions, which gave context to the offending for which the appellant fell to be sentenced.

29 The judge described the appellant's moral culpability as 'high' and observed that his 'cynical criminal conduct' was motivated by profit and greed, rather than poverty, deprivation or ill-health.[6]

30 The judge stated that a substantial term of imprisonment was necessary for the purposes of general deterrence, and that specific deterrence and just punishment were also relevant factors.

31 The judge had regard to a number of factors in mitigation of sentence. First, the appellant's plea of guilty had benefited the community by avoiding the need for a lengthy and complex trial, and indicated a degree of remorse. However, he found that the appellant's remorse was 'limited'.[7]

32 Secondly, the appellant's background. The judge acknowledged that the appellant's childhood and developmental years had been 'severely disrupted' by the civil war in Sierra Leone and that this would have impaired his capacity for reasoned decision-making.[8] He also acknowledged that the appellant and his family had experienced great hardship at that time. However, the judge noted that the appellant did not suffer from any mental illness or drug addiction, and was 'an intelligent man' who chose to commit the offences for reasons of profit and greed.[9]

33 Thirdly, the judge assessed the appellant's prospects of rehabilitation as 'reasonable'.[10] However, he also stated that they must be 'approached with caution'.[11] In reaching this view, the judge had regard the appellant's caring and supportive family who may aid his rehabilitation, the hardship experienced by him, his education and work history, and noted that his children would be deprived of his care and support while he served his sentence.

34 The judge said that, in arriving at 'an appropriate proportionate sentence',[12] he had regard to the observations of this Court in Director of Public Prosecutions (Cth) v Brown[13] and the comparable sentences referred to in that case.

Parties' submissions on manifest excess ground

35 The appellant submitted that his sentence is manifestly excessive having regard to sentences imposed for similar offending since 2010 and his personal circumstances.

36 The appellant placed considerable reliance on Brown. In that case, Brown, who was born in Australia and was 31 years of age of the time of the offending, imported two commercial quantities of ice concealed in car engines. The first consignment the subject of charge 1 comprised 3.4 kilograms and the second consignment the subject of charge 2 comprised 44.667 kilograms. His role was to meet with an associate after the ice had been shipped to Australia in the engines and collected from the docks, provide a safe location where the engines could be dismantled, assist with the removal of the ice from the engines, and store it before delivering it to the buyer. He was well-educated, had a happy upbringing, was motivated by profit, and had no mental health issues or relevant prior convictions. He did not plead guilty or express remorse but had good prospects of rehabilitation. This Court allowed a Crown appeal against sentence and resentenced Brown to 16 years' imprisonment for the second importation and 11 years' imprisonment for the first importation. Cumulation of four years' imprisonment for the first importation resulted in a total effective sentence of 20 years. The Court fixed a non-parole period of 15 years.

37 The appellant submitted that his sentence was manifestly excessive when compared with that imposed on Brown, because his offending was objectively less serious, and he was able to call in aid mitigating factors that were not available to Brown_._ In particular, he emphasised that he was sentenced to only one year less than Brown on their respective base charges, despite the fact that he had pleaded guilty and Brown had pleaded not guilty. The appellant also contrasted his deprived background in Sierra Leone and his limited education and lack of consistent employment in Australia, with Brown's more privileged upbringing and education. He contended that, as a result of this striking contrast, his moral culpability was lower than that of Brown.

38 The appellant accepted that the size of the importation attempted is ordinarily a significant factor in sentencing but submitted that, unlike Brown, he was unaware of the quantities of the drugs being imported and was unable to dictate the manner in which the drugs arrived in Australia or the size or number of the consignments. Therefore, he contended, the quantity of drugs he attempted to import should have assumed less significance.

39 The appellant submitted that his role in the drug syndicate was limited to contacting freight companies to arrange delivery to nominated addresses and there was no evidence that he coordinated others in a 'managerial capacity'. To the contrary, he argued that the telephone intercepts were evidence that he rarely gave instructions to others. This, so it was said, was in contrast to Brown who had met with members of the syndicate overseas and, with his associate, was responsible for the syndicate's Australian operations.

40 Brown is discussed in more detail at [63]-[65] below.

41 The appellant also relied on R v Yuan.[14] In that case, the New South Wales Court of Criminal Appeal upheld a Crown appeal and resentenced Yuan to 15 years' imprisonment with a non-parole period of 10 years for the importation of a commercial quantity of a border controlled drug, namely 54.961 kilograms of pure ice in a single consignment. Yuan liaised with a person in China concerning the despatch of the container of goods in which the drugs were secreted and the transfer of money to China. He was 'the supervisor of what occurred at the Australian end', in a 'pivotal' role and a position of trust, and motivated by greed.[15] He had no previous criminal history and was assessed as being at low risk of re-offending. He did not plead guilty and had shown no remorse. The appellant submitted that, although there are many similarities between his offending and that of Yuan in relation to charge 1, he was sentenced to the same period of 15 years' imprisonment despite his guilty plea.

42 The appellant argued that the individual sentences for charges 2 and 3 and the orders for cumulation are also manifestly excessive. He contended that the offending the subject of those charges overlapped in time with the offending the subject of charge 1 and that he was charged with three separate offences rather than a single offence only because three different drugs were involved.

43 In relation to charge 3, the appellant additionally contended that the sentence of 3 years' imprisonment and the order for cumulation of 6 months were clearly excessive having regard to the low quantity (28.89 grams) and street value ($8,600) of the cocaine which was the subject of the single instance of attempted importation, and his lack of prior history of drug offences.

44 The appellant submitted that the judge did not have proper regard to the following personal circumstances, resulting in the manifestly excessive sentence. First, the hardship that he will experience as a result of his separation from his wife and children. Secondly, his deprived background. Thirdly, his plea of guilty. Fourthly, his prospects of rehabilitation. He argued that his prospects must be considered in the light of the fact that he had learned English, commenced employment and started a family in Australia despite his traumatic past.

45 The appellant contended that the s 6AAA declaration[16] of 21 years' imprisonment with a non-parole period of 17 years itself evidences that his total effective sentence is manifestly excessive because, had the sentence set out in the declaration been imposed on the plea of not guilty, it would have been outside the range that was open to the judge.

46 The Crown submitted that no component of the sentence imposed by the judge is manifestly excessive. It emphasised the seriousness of the offences and the maximum sentences of life imprisonment for charge 1, and 25 years' imprisonment for charges 2 and 3, which provide yardsticks in the sentencing process.

47 The Crown submitted that the 38 separate consignments in relation to which the appellant participated in a senior and trusted managerial capacity, and the total quantities involved, meant that his offending was far more prolific and objectively more serious than that in Brown and Yuan. The Crown made similar submissions in relation to four other cases on which it relied, namely, McCraw v The Queen,[17] Pham v The Queen,[18] Saab v The Queen[19] and Luong v Director of Public Prosecutions (Cth).[20] These cases are discussed below.

48 The Crown contended that the judge had given appropriate weight to the mitigating circumstances on which the appellant relied.

49 We are not satisfied that the individual sentences, the orders for cumulation, the total effective sentence or the non-parole period are manifestly excessive. Although the appellant was entitled to a discount to reflect his guilty pleas, and to appropriate weight being given to the other mitigating factors on which he relied, the sentences imposed by the judge were well within the range of sentences open to him due to the objective gravity of the offending and the appellant's high moral culpability.

50 As we have already stated, charge 1 was a rolled up charge involving 33 separate consignments containing ice. The total quantity of 55.9578 kilograms was almost 75 times the commercial quantity and the estimated street value was between $31 million and $61 million. These amounts indicate that the criminal syndicate in which the appellant participated operated a large and lucrative drug importation business and that his senior and trusted managerial role, which the judge found he performed, was an important component of that business. The telephone intercepts indicate that he was aware that large quantities of drugs were being imported and that they had significant value. Over a period of nearly four months, the appellant made consistent and concerted efforts to take possession of the drugs, even after he was informed that customs officers had delayed delivery of one of the consignments.

51 Assessed against the maximum penalty of life imprisonment, the sentence of 15 years is appropriate and, as discussed below, consistent with sentences imposed for similar offending in other cases.

52 The judge gave appropriate weight to the appellant's traumatic childhood and acknowledged that it would have impaired his capacity for reasoned decision-making. However, the judge also found that despite the appellant's disadvantaged background and limited education, he was an intelligent man who chose to commit the offences for reasons of profit and greed rather than poverty, deprivation or ill-health.[21] He was able to make arrangements for the delivery of a large number of consignments of imported drugs and to take steps to avoid detection. Those steps included changing consignment delivery addresses, using a false name and possession of three laptop computers, four mobile telephones and false identification.

53 The judge also gave appropriate weight to the fact that the appellant had family support which would aid his rehabilitation.[22] However, it was also relevant to the sentencing synthesis that the appellant had an extensive criminal history. Although that history did not involve drugs and predominantly comprised motor vehicle offences, it also included serious offences of violence and dishonesty such as intentionally causing injury, intentionally damaging property, assault with a weapon, resisting police, theft from a motor vehicle, stating a false name and address, making a threat to kill and assaulting police. Further, although the appellant had been incarcerated previously for only one month and had been placed on both a CBO and a CCO, he had breached those orders and failed to take advantage of the opportunities for rehabilitation that they afforded him.

54 While we accept that the appellant was not to be punished more severely due to his criminal history, the persistent disregard for the law and the rights of other citizens disclosed by that history was relevant to the weight to be given to the mitigating circumstances on which he relied, and to specific deterrence.

55 The judge was correct to emphasise the importance of general deterrence in a case such as the present. As this Court said in Brown, there needs to be 'a clear signal to would-be offenders, motivated by the potential financial rewards of drug importation, that detection will inevitably lead to very lengthy terms of imprisonment'.[23]

56 We now turn to charge 2. As we have already stated, this was a rolled up charge involving four separate consignments of heroin. The total quantity of 725.3 grams was 362.5 times the marketable quantity - nearly 50 per cent of a commercial quantity - and the estimated street value was $217,500. Having regard to these amounts and the appellant's important role in the criminal syndicate, the sentence of 5 years is unremarkable. This is particularly so having regard to the maximum penalty of 25 years' imprisonment. Further, the cumulation of 1 year was modest having regard to the gravity of the separate and distinct offending which charge 2 involved.

57 Charge 3 differs from charges 1 and 2 because it involved a single consignment of cocaine and its street value of $8,600 was modest compared to the street value of the ice and heroin. Nevertheless, for the following reasons, we are not satisfied that the sentence of 3 years' imprisonment or the cumulation of 6 months are manifestly excessive. First, this single consignment cannot be isolated from the appellant's conduct as a whole. It cannot be treated as if it were a 'once only' discrete incident. Secondly, in the light of the fact that the imported amount of 28.89 grams is more than 14 times the marketable quantity, the offending can only be described as serious. Thirdly, due to the nature of the appellant's involvement in the criminal syndicate, his culpability was high. Finally, having regard to the yardstick provided by the 25 year maximum penalty, the sentence and level of cumulation cannot be regarded as disproportionate to the seriousness of the appellant's offending and his moral culpability.

58 As we have concluded that the individual sentences for the three charges and the orders for cumulation for charges 2 and 3 are not manifestly excessive, it follows that we are not satisfied that the total effective sentence is manifestly excessive. The total effective sentence was 'of a severity appropriate in all the circumstances of the [appellant's offending]', as required by s 16A(1) of the Crimes Act 1914 (Cth).

59 We reject the appellant's submission that the s 6AAA declaration evidences that the total effective sentence is manifestly excessive. It is well established that, due to the artificiality in the formulation of a s 6AAA declaration and the fact that the process of instinctive synthesis involves a balancing of multiple - and often competing - sentencing considerations, such a declaration is generally not to be taken to exhibit error.[24] In the present case, the judge gave appropriate weight to the appellant's guilty plea and no error is disclosed by the s 6AAA statement.

60 The non-parole period of 12 years and 6 months' imprisonment represents 75 per cent of the total effective sentence of 16 years and 6 months' imprisonment. There is nothing remarkable about it.[25]

61 As we have mentioned, the appellant relied on Brown and Yuan and the Crown relied on McCraw, Pham, Saab and Luong on the question whether the sentences imposed on the appellant are manifestly excessive. Of course, as the High Court emphasised in Director of Public Prosecutions v Dalgliesh,[26] a sentencing judge has a duty to impose a sentence that is just in all the circumstances of an offender's case and no sentence in a previous case can prevent the judge from discharging that duty. Sentences in prior cases do not set a mandatory benchmark or binding precedent as to the sentence that is reasonably open in a subsequent case.[27] However, while a sentence that is just and appropriate in the circumstances of a particular offender cannot be rendered manifestly excessive by reference to so-called comparable cases, it is often instructive, and conducive to greater consistency in sentencing, to consider whether a sentence accords with sentences imposed in such cases.

62 As the parties' submissions devoted considerable time to Brown, we will discuss that case first.

63 The facts in Brown are set out at [36]-[39] above. The main similarities between Brown and the present case are as follows. First, both offenders were of a similar age when they offended. Secondly, both offenders were motivated by greed. Thirdly, the period of the offending by both the appellant and Brown was approximately four months.

64 The main differences between Brown and the present case are as follows:

(a) The appellant pleaded guilty and showed 'limited' remorse[28] whereas Brown pleaded not guilty and showed no remorse.

(b) The appellant had a disadvantaged background but Brown did not.

(c) The appellant's offending involved 38 consignments whereas Brown's involved only two.

(d) The aggregate quantity of ice involved in charge 1 for the appellant - 55.9578 kilograms - was almost 75 times the commercial quantity and had a street value of between $31 million and $61 million. By contrast, the quantity of ice involved in charge 2 for Brown - 44.667 kilograms - was almost 60 times the commercial quantity and had a street value of between $42 million and $56 million.

(e) Although the Court in Brown described his offence as one of 'the utmost seriousness'[29] and his role as 'major'[30] and 'essential'[31], he provided 'minor assistance' to his associate in removing the ice from the car engines.[32] By contrast, the appellant's offending was described as 'of the utmost gravity' and he had a senior and trusted managerial role in organising delivery of the drugs to various addresses.

(f) Brown was not involved in the distribution of the drugs and did not know the type of drug involved in the first importation and did not know the quantity of the drug involved in the second importation until after its arrival in Australia. By contrast, the appellant was involved in the distribution of the drugs. This allowed him insight into the quantities and values of the drugs and the scale of the overall drug importation operation in which he was involved, even if he was not aware of the precise quantities of drugs being imported in each consignment.[33]

(g) Brown visited overseas syndicate members but the appellant did not.

(h) While the appellant had an extensive criminal history in four States - albeit not involving drug offences - Brown had no prior convictions of relevance.

(i) Brown had 'excellent' prospects of rehabilitation[34] whereas the appellant's prospects were 'reasonable' but had to be 'approached with caution'.[35]

(j) Delay was a mitigating circumstance in Brown but was absent in the appellant's case.

(k) There was some evidence that the criminal drug syndicate had threatened Brown's girlfriend, which had some limited impact on his moral culpability.[36] By contrast, there was no such evidence in the present case.

65 In our opinion, the differences as referred to at [64] above - particularly those in paras (c), (d), (f), (h), (i), (j) and (k) - provide a sufficient explanation for the difference of only one year in the base sentences imposed on Brown and the appellant despite Brown's plea of not guilty. It follows that the sentence in Brown does not provide a sound basis for the appellant's contention that his sentence is manifestly excessive.

66 In relation to Yuan, the sentence of 15 years' imprisonment imposed on the appellant for charge 1 after a guilty plea appears, on a first impression, to be inconsistent with the same sentence imposed on Yuan after a plea of not guilty. However, that impression is readily dispelled when regard is had to four important differences between the two cases. First, Yuan's offence comprised a single consignment involving 54.961 kilograms of pure ice whereas the appellant's charge 1 involved 33 consignments totalling 55.9578 kilograms of ice. Secondly, Yuan supervised delivery of the drugs to a single address in Australia whereas the appellant made arrangements for deliveries to multiple addresses. Thirdly, Yuan was assessed as being at low risk of re-offending whereas the appellant's 'reasonable' prospects of rehabilitation had to be 'approached with caution'.[37] Fourthly, Yuan did not have a previous criminal history.

67 In any event, even if it is accepted that there is an inconsistency between the sentences in Yuan and the present case, that does not mean that the sentence in the present case is manifestly excessive or that it is inconsistent with current sentencing practices in Australia. On the contrary, a comparison between this case and the cases summarised in the schedule to Brown indicates consistency with current sentencing practices in Australia. This is borne out by the cases of McCraw, Pham, Saab and Luong on which the Crown relied and which are briefly summarised below.

68 In McCraw,[38] the New South Wales Court of Criminal Appeal dismissed McCraw's appeal against his sentence of 17 years' imprisonment with a non-parole period of 11 years and 2 months, for one instance of conspiring to import 30.82 kilograms of pure MDMA. His role had been to supervise the unloading of the drugs from the ship and organise transport from the dock to another location. He did not plead guilty and had no relevant prior convictions. A co-offender, Pasinovic, who pleaded guilty to the same offence, was sentenced to 15 years and 3 months' imprisonment with a non-parole period of 10 years and 1 month.

69 In Pham,[39] this Court dismissed an application for leave to appeal by one of the offenders (Tang) against a sentence of 15 years' imprisonment, imposed for each of three charges of importing a commercial quantity of a border controlled drug, namely: 71.564 kilograms of pure cocaine, 29.285 kilograms of pure ice and 9.757 kilograms of pure MDMA concealed in one consignment. The sentencing judge made orders for cumulation which resulted in a total effective sentence of 19 years' imprisonment and fixed a non-parole period of 14 years. Although Tang's position in the hierarchy of the drug importation syndicate was unclear, he was sentenced on the basis that he was entrusted to act as a broker upon the arrival of the drugs into Australia and resolve any dispute that arose regarding the quantity of the supply. He had pleaded guilty.

70 In Saab,[40] this Court dismissed Saab's appeal against a sentence of 14 years' imprisonment, with a non-parole period of 10 years, for one charge of importation of 14.6 kilograms of pure cocaine. He was the Australian link in the drug network. His role was to oversee the collection and retrieval of the drugs. He recruited and supervised two co-offenders. He had a dysfunctional childhood, a history of depression and a pervasive personality dysfunction. He had no prior convictions. He pleaded guilty and showed genuine remorse for his offending.

71 In Luong,[41] this Court dismissed Luong's application for leave to appeal against a total effective sentence of 15 years' imprisonment with a non-parole period of 11 years for three offences - committed concurrently - of attempting to possess a commercial quantity of a border controlled drug. The first offence involved 21.8 kilograms of pure ice, the second offence involved 6.3 kilograms of MDMA and the third offence involved 29.1 kilograms of pure cocaine. Luong had played a 'not insignificant role' in organising and facilitating the offending.[42] Although he did not plead guilty, he was able to call in aid strong mitigating factors including his status as a refugee from Vietnam, low-average intellectual ability, and the fact that he was the primary carer of his two disabled children. He also had no previous criminal history.

72 For the above reasons, the appeal will be dismissed.

[1] DPP (Cth) v Blango [2017] VCC 1140 ('Sentencing remarks').

[2] Blango v The Queen (Unreported, Court of Appeal of Victoria, Priest JA, 21 December 2017).

[3] On 17 June 2015, the appellant received a text message that read: '[t]he address is 2/10 glyndon Avenue st Albans Vic 3021 and please forward'. That consignment, addressed to 'Victor Wleh', subsequently arrived in Australia.

[4] Sentencing remarks [15], [18], [24].

[13] [2017] VSCA 162 ('Brown').

[14] [2015] NSWCCA 198; (2015) 252 A Crim R 422 ('Yuan').

[15] Yuan [2015] NSWCCA 198; (2015) 252 A Crim R 422, 435 [57]-[58].

[16] See s 6AAA of the Sentencing Act 1991.

[17] [2011] NSWCCA 162 ('McCraw').

[18] [2012] VSCA 101 ('Pham').

[19] [2012] VSCA 165 ('Saab').

[20] [2013] VSCA 296; (2013) 46 VR 780 ('Luong').

[21] See [29], [32] above.

[22] See [33] above.

[23] Brown [2017] VSCA 162 [9], [68].

[24] See, eg, Saab [2012] VSCA 165 [58]-[61]; Zogheib v The Queen (2015) 257 A Crim R 454, 468-70 [60]-[64]; Maybus v The Queen [2017] VSCA 125 [52].

[25] The principles for determining whether a non-parole period is manifestly excessive are discussed in McLean v The Queen [2018] VSCA 209.

[26] [2017] HCA 41; (2017) 349 ALR 37, 40 [5], 51 [65], 53-4 [79], 55 [85].

[27] Lee v The Queen [2018] VSCA 63 [89].

[28] See [31] above.

[29] Brown [2017] VSCA 162 [6].

[30] Brown [2017] VSCA 162 [30], [61].

[31] Brown [2017] VSCA 162 [30], [63].

[32] Brown [2017] VSCA 162 [13], [17].

[33] As the appellant was not charged with trafficking the drugs, his role as a 'distributor' could not be treated as an aggravating feature of the offences with which he was charged: R v De Simoni (1981) 147 CLR 383.

[34] Brown [2017] VSCA 162 [51].

[35] See [33] above.

[36] Brown [2017] VSCA 162 [89].

[37] See [33] above.

[38] [2011] NSWCCA 162.

[39] [2012] VSCA 101.

[40] [2012] VSCA 165.

[41] [2013] VSCA 296; (2013) 46 VR 780.

[42] Luong [2013] VSCA 296; (2013) 46 VR 780, 807 [142].