1 Mark Chandler and Caner Paksoy each pleaded guilty to one count of trafficking in a large commercial quantity of methylamphetamine (and to certain other counts). They were sentenced in the County Court on 18 December 2007, as set out in Table A below. Their appeals against sentence were heard together.

2 At the conclusion of the appeal hearing, we announced that the appeals would be allowed and that we would publish our reasons 'as soon as practicable'. Because more than two and a half years had by then passed since sentence was imposed in the County Court, it seemed to us appropriate that each appellant should have the opportunity to make a submission, as on a plea in mitigation, based on up-to-date material. Their respective counsel indicated that they wished to take up that opportunity.

3 In the event, it has taken many months for those supplementary submissions to be filed. The delay appears to have been attributable, in a large part, to difficulties experienced by the respective solicitors for the appellants in obtaining relevant information from Corrections Victoria and, in the case of Mr Chandler, a supplementary expert's report. It is only to be regretted that, in a case which has already been bedevilled by delay, the appellants have had to wait even longer to learn of the outcome of their appeals. The information sought from Corrections Victoria was of a routine kind and should have been able to be supplied within a matter of days, not months.

4 As set out below, we took the supplementary information into account in reaching our conclusion as to the appropriate resentencing. On 2 December 2010, the appellants were resentenced as set out in Table B at the conclusion of the reasons.

5 On 15 September 2003 police searched a property in Ashburton, in which Messrs Chandler and Paksoy and a third man, Oscar Simsek (now deceased) had been engaged in the manufacture of methylamphetamine. No one was living at the property. One room was used as an office, while a bungalow and a garage were used for the manufacturing. Surveillance evidence showed that both Chandler and Paksoy had been actively involved in work at the premises over a period of several months.

6 At the property, police discovered what was described in the Crown opening as 'a huge array of substances, equipment and documents ... which had been used in the manufacturing of the methylamphetamine.' They seized 1.223 kilograms of methylamphetamine in powder form, equivalent to 0.843 kilograms of pure methylamphetamine. It was estimated that this quantity would have had a wholesale value of between $100,000 and $130,000 and, on conversion into a lower purity form for distribution, an estimated street value of $3 million. Police also seized 12.4 kilograms of pure methylamphetamine in base oil form, with an estimated wholesale value of $1.24 million and an estimated street value of $29.76 million.

7 The total quantity of pure methylamphetamine found was thus 13.246 kilograms. Messrs Chandler and Paksoy were sentenced on the basis that this represented approximately 18 times the large commercial quantity of methylamphetamine, being 750 grams.[1]

8 The police arrested Chandler, Paksoy and Simsek the same day. When interviewed, each of the appellants made admissions with respect to his involvement in manufacturing methylamphetamine.

9 Police also searched Chandler's home and located an extensive clandestine laboratory set up in his garage. This laboratory was used to manufacture drugs of dependence. Scientific glassware and equipment suitable for the manufacture of drugs of dependence were located. This formed the basis of count 2.

Trafficking drug of dependence - large commercial quantity

Possessing substances, equipment, documents and materials for the purposes of trafficking in a drug of dependence

Trafficking drug of dependence − large commercial quantity

11 Argument on the appeal concentrated on two grounds common to both appellants - delay and manifest excess. We deal first with the issue of delay.

12 The appellants were arrested and charged in September 2003. They were each granted bail three months later. Almost two years elapsed before they were committed for trial, in October 2005, and a further two years before their cases were finally set down for trial, in October 2007. On 9 October 2007, each of the appellants entered a plea of guilty to the counts he faced.

13 There was thus a delay of more than four years between the date of charge and the date of sentence. That is, on any view, a very significant lapse of time. We note, with some concern, the statement in the Crown's appeal submission that '[t]he delay does not appear to be unusual especially for cases of this nature.' This seems both surprising and regrettable, given that - as we have noted - each of the appellants made admissions when first interviewed in September 2003. Moreover, as the sentencing judge was told, Mr Paksoy had made an unconditional offer as early as March 2005 to plead guilty to the count of trafficking in a large commercial quantity of methylamphetamine. Mr Chandler's plea offer came later that year.

14 Unsurprisingly, the long delay had a significant impact on each of the appellants. In Chandler's case, he made very substantial progress towards rehabilitation. As his counsel pointed out on the plea, he had secured full time employment in late 2004 and had been in continuous employment thereafter. So impressed was the employer with Chandler's capability and reliability that he came to court to give evidence on the plea and, in particular, to inform the court that Chandler would 'have a job the day he gets out, back with me full time'. Secondly, Chandler had married and was in a stable relationship, with his wife supporting him through the proceedings.

15 Like Chandler, Paksoy had not offended during the four year period. This was, for both of them, a very significant consideration going to rehabilitation. But, unlike Chandler, Paksoy had not been able to 'order his life'. Uncontested evidence was given by his former de facto partner that their five year relationship, of which a daughter was born in December 2003, had broken down 'in part due to the stress of the seemingly never-ending court case.' Paksoy had established a very close relationship with his daughter over the four years and other witnesses gave evidence of how traumatic his imprisonment would be for both of them.

16 Unaccountably, neither defence counsel on the plea made any reference to the substantial, and long-standing, body of authority establishing the 'powerful mitigatory effect' which delay can have on sentencing. The applicable principles have been clearly, and repeatedly, stated in decisions of this Court over more than a decade.[2] Most recently, as senior counsel for Mr Chandler pointed out, Ashley and Weinberg JJA in R v Talia[3] said this:

Delay may stand as a powerful mitigatory feature. If the accused has not re-offended in a lengthy period between offending and sentence, it will tend to show that there is an enhanced prospect of rehabilitation. There is also a question of fairness in the event that a matter is left hanging over an offender's head during an apparently leisurely process of investigation and prosecution. The longer the period of delay, the greater its likely weight as a mitigatory circumstance, particularly when the delay is not attributable to the conduct of the accused. Again, whilst it is not necessary for delay to operate as a circumstance of mitigation, that it be unexplained, the fact that it is not attributable to the conduct of the accused will likely make it of greater significance.

17 In argument on the appeal, senior counsel for the Crown sought to advance - for the first time - a contention that neither appellant could derive any mitigatory benefit from the delay, because - so it was said - the delay was substantially attributable to drawn-out plea negotiations. We reject that submission, for two reasons. The first point is one of procedural fairness. If, in a case where delay is relied on, the Crown wishes to contend that there has been some disentitling conduct on the part of the defence, that is a matter which must be raised, and substantiated, on the plea. Unless that is done, the defence has no reasonable opportunity to meet the point. Plainly enough, a matter of that kind cannot be raised for the first time on appeal, less still in the course of oral argument.

18 The second point is a substantive one. The cases recognise that there will be circumstances in which the conduct of the defence during the period of delay is such as to disentitle the defendant from calling in aid the mitigatory effect of the delay. But the conventional process of plea negotiation does not constitute such disentitling conduct except where the behaviour of the defence can fairly be characterised as 'deliberate delaying tactics'. In such a case, which is likely to be exceptional, it would obviously be unjust for a defendant to be able to take advantage of a delay which he/she had deliberately created.

19 With that exception, there is no occasion for a sentencing judge to investigate the underlying reasons for the delay. As the court said in R v Merrett, Piggott & Ferrari:[4]

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay ... focuses attention on issues of rehabilitation and fairness.

20 In the present case, each of the appellants was able to call in aid considerations both of rehabilitation and of fairness. The conduct of each appellant during the four year period constituted a very positive indication of his prospects for, and attitude towards, rehabilitation. At the same time, each had to live with the knowledge that sooner or later he would be facing a substantial prison term. These matters required to be given real weight in the sentencing consideration. Although the judge was not given the assistance on this topic she should have been given, these were nevertheless considerations which we consider her Honour was bound to take into account. Her failure to do so constitutes sentencing error.

21 We turn to consider the arguments on manifest excess.

22 The maximum penalty for trafficking in a large commercial quantity of a drug of dependence is life imprisonment. The fixing of that maximum places this offence in the highest category of seriousness of criminal offending, along with murder. And this was a very serious instance of this very serious offence. As noted earlier, the quantity of methylamphetamine which the appellants admitted manufacturing was 18 times the amount specified by Parliament as constituting a large commercial quantity of that drug.

23 As this Court said in R v Pidoto & O'Dea,[5] the sentencing regime under the DPCS Act is quantity-based. The quantity of the drug trafficked is the measure of seriousness which informs the gradation of trafficking penalties, from life imprisonment for the present offence, down to 15 years' imprisonment for trafficking in less than a commercial quantity. It follows that the actual quantity trafficked by the particular accused - in this case, the relevant measure is the multiple of the threshold quantity - will be a very significant sentencing consideration. None of the sentencing decisions to which the Court's attention was drawn involved trafficking in a quantity representing 18 times the large commercial quantity of the drug in question.

24 As to the role played by the respective appellants, it is sufficient to say that each of them was assiduously engaged in the manufacture of the drug. They were, in short, the manufacturers (together with Simsek). Labels such as 'labourer' and 'cook' understate the significance of the role. The appellants were not simply following instructions. On the contrary, the surveillance evidence showed that they had actively discussed, and then experimented with, a different approach to the manufacture of the drug, by a process which produced methylamphetamine hydrochloride instead of methylamphetamine sulphate. According to the summary, the material and equipment found at Chandler's home was used for the purpose of this experimentation.

25 As senior counsel for Paksoy accepted, this was manufacture with a view to distribution. Police had found packages of the drug in powder form ready for distribution, and each of the appellants had been observed packing the drug into plastic bags. It was submitted nevertheless that the offending was to be viewed as less serious than it would have been had the quantity manufactured been distributed in whole or part. We reject that submission. Other things being equal, manufacturing a large commercial quantity of a drug for distribution is no less culpable than the distribution of that quantity of drug. The definition of 'traffick' in s 70 of the DPCS Act makes the manufacture of a drug of dependence an act of trafficking, in the same way as preparing a drug for trafficking and selling or offering for sale is an act of trafficking. Under this legislative scheme, the potential harm of the manufactured drug is viewed as seriously as is the actual harm of the distributed drug.

26 It is in the appellants' favour, however, that the prosecution did not characterise either of them as the organiser or initiator of the drug trafficking operation. Nor was there any evidence that either appellant had derived any substantial financial benefit from his work as a manufacturer. It was said for Chandler, on the plea and on the appeal, that his financial gain had come solely through Simsek and had been 'towards more the modest end of the scale'. At interview, Chandler told police that he had received amounts varying between $2,000 and $5,000. A sum of $11,000 had been found at his house. His counsel submitted:

But it isn't a situation where he's got vast assets or vast accumulated wealth that the prosecution are seeking to point to as evidence of his involvement in the matter, or his benefit from the matter, being at a level beyond that which he openly admits to the police.

Counsel for Paksoy told the judge that there was 'absolutely no evidence whatsoever of enrichment'. It was said that all Paksoy had ever received from this work was $15,000.

27 These arguments were not seriously contested by the prosecution. In reply, the prosecutor said only this:

... it was sophisticated, huge quantities involved with an intention - the only intention, obviously, that can be inferred from all the evidence ... was that this product was destined for the market, and somebody had to profit by it. To suggest that one didn't profit very much by it or was not going to flies in the face of the objective evidence, albeit the Crown can't point to specific amounts.

28 In answer to a question from the sentencing judge, the prosecutor confirmed that there was no evidence of hidden wealth. He confirmed that the only evidence 'as to betterment' was what Chandler and Paksoy had respectively said at interview. The following exchange took place:

HER HONOUR: There is no doubt the prosecuting authorities would look at bank accounts and those sorts of things to check whether this [evidence] was correct. I can assume, can I not, the prosecution would have checked the background of these men to make sure that was the case?

PROSECUTOR: All I can say is there is no evidence. I'm not aware of any evidence about money in bank accounts and so forth ...

29 Senior counsel for both appellants sought to substantiate the manifest excess ground by drawing attention to sentences imposed in comparable cases. This is both appropriate and necessary, given that the ground of manifest excess involves establishing that the sentence imposed was outside the range reasonably open to the judge sentencing the particular offender in the particular circumstances of the case. The question of the applicable range is very significantly informed by current sentencing practices, to which in any case a sentencing judge is required to have regard.[6]

30 Accepting of course that no two cases will be the same, the objective of consistency in sentencing will usually mean that the sentencing court must look to comparable cases as a point of reference.[7] The sentencing task in the particular case will usually be assisted by the identification of material similarities to, and material differences from, other cases involving the same or a similar offence.

31 In the present case, the prosecutor simply referred her Honour to two decisions of this Court which, it was said, would assist her 'as to current sentencing practices, to some extent.' The first was the decision in R v D'Aloia.[8] In that case, the offender pleaded guilty to trafficking in a large commercial quantity of a drug of dependence, being MDMA. He had evidently trafficked (by sale) in approximately two multiples of the applicable large commercial quantity. The trial judge had found that the offender 'was at the top of the tree of offending and was engaged in the activity of trafficking in a large commercial quantity of ecstasy for personal profit in which the sums of money changing hands were substantial.'[9] The Court (Nettle JA, with whom Vincent JA and King AJA agreed) held that the sentence of nine years' imprisonment on the trafficking count was 'well within the range'.[10]

32 The second decision to which her Honour was referred was Director of Public Prosecutions v Downing.[11] There, each of the three co-accused had pleaded guilty to trafficking (by manufacture for sale) in a large commercial quantity of ecstasy. The amount trafficked was 12.8 kilograms which, Nettle JA noted, was almost 13 times the large commercial quantity fixed by the DPCS Act.[12] The sentencing judge differentiated between the three co-accused as follows: the ringleader was sentenced to 12 years' imprisonment, with a minimum of seven; the 'cook' to 10 years' imprisonment, with a minimum of six; and Downing to seven years' imprisonment, with a minimum of four. He was treated as having the lowest level of involvement because he was not an organiser and had been involved as a 'consultant chemist'.[13]

33 There were, however, exceptional circumstances, as Nettle JA explained. The ringleader who was 'the financier and the boss', was a C4 quadriplegic, who had chronic problems with pressure sores, needed to be turned every couple of hours when sleeping, needed temperature control when sleeping to avoid hypothermia, and required assistance with grooming and medication.[14] Observing that all of the sentences imposed appeared 'very lenient', Nettle JA said:

It seems to me, however, that the judge was in a difficult position when sentencing [the ringleader], in that his Honour was faced with an offender whose physical condition and consequent suffering were bound to make life in prison almost unbearable. Rightly, the judge very substantially reduced the sentence imposed on [the ringleader] for that reason. Having done that, his Honour had also to deal with the demands of parity when it came to sentencing [the two co-accused]. So, while allowing that the special circumstances applicable to [the ringleader] were not applicable to the other two offenders, it was perhaps inevitable, or at least likely, that some of the leniency shown towards Allen was reflected in the sentences imposed on the others.[15]

34 It was submitted by senior counsel for Paksoy that the decision in Downing should be viewed as the most appropriate guide for sentencing in this case. Sufficient has been said about the extraordinary circumstances which affected the whole approach to sentencing in that case to demonstrate why that submission cannot be accepted.

35 Of much greater relevance, in our view, is the decision in R v Ahmed,[16] also relied on by counsel for Paksoy. In that case, the offender had pleaded guilty to three counts of trafficking in a large commercial quantity, and had been sentenced to 16 years' imprisonment on each count. The amount trafficked was more than 14 times the large commercial quantity of the drug in question. Because of a sentencing error, it fell to this Court to resentence him, but only on one of the counts (the remaining two convictions having been quashed). He was resentenced on that count to 14 years' imprisonment.

36 That is the same term of imprisonment as was imposed on each of the present appellants. But, as their respective counsel pointed out, there were very significant differences between that case and this. Unlike the appellants, who had no prior convictions, Ahmed had 'made a career dealing in drugs of dependence'. He had a prior conviction for importing cannabis resin, for which he received a term of imprisonment, and another for trafficking in cocaine and amphetamine, for which he had received a longer term of imprisonment. The offence for which he was being resentenced by this Court had been committed while he was on parole under the earlier trafficking sentence.[17]

37 These were such significant differences, in our view (particularly when one has regard to the powerful mitigating factors that could be called in aid in this case, but not in Ahmed[18]) as to establish that it was not reasonably open to the judge in the present case to impose sentences of 14 years on these appellants on the trafficking counts. That is so, notwithstanding the central importance of general deterrence, as a sentencing consideration, in cases of this type. The sentences were therefore manifestly excessive.[19]

38 For these reasons, we concluded that both the delay ground and the manifest excess ground should be upheld. The sentencing discretion was therefore re-opened and it fell to this Court to resentence each appellant.

39 Further to Chandler's progress towards rehabilitation, as earlier discussed,[20] he continues to have the strong support of his wife. But it was his mental state to which most attention was addressed on the plea, and again in the supplementary submission. There are two aspects to this. The first is that, as the sentencing judge was told, Mr Chandler was diagnosed by the clinical psychologist, Dr Paul Grech, as suffering from Asperger's Disorder. According to Dr Grech, this is a condition

which not uncommonly afflicts intelligent people who are affected by severe impairment in social interaction and the development of restricted, repetitive patterns of behaviour, interests and activities. There is an abnormal intensity or focus on these restricted behaviours, but there is no clinically significant delay in cognitive development or in the development of age-appropriate self-help skills, adaptive behaviour (other than in social interaction) and curiosity about the environment.

Asperger's Disorder is an Autism Spectrum Disorder. It is a continuum of disorders which overlaps with another pervasive developmental disorder, Autism, but is considered to affect relatively high functioning people. Furthermore, Mr Chandler would be considered by the examiner to be a relatively high functioning example of someone with Asperger's Disorder.

It should be noted that people with Asperger's Disorder possess social skills which are discharged in an essentially normal fashion a majority of the time, but they tend to present as "odd" and can be frustrating, as Mr Chandler's legal practitioners have experienced.

...

It should be further noted that the pattern of difficulties in Asperger's Disorder is quite idiosyncratic and the diagnosis is not a straightforward or readily made. Its characteristics - which Mr Chandler certainly displays in abundance - are a preference for solo activities (notwithstanding an acute desire to be socially accepted), advanced verbal skills (including an extensive vocabulary), but problems with practical communication (which is exacerbated by his social phobia), an inability to recognise subtle social cues or understand the rules of social behaviour, an exquisite, destabilising sensitivity to criticism, eccentricity and a narrow field of interests.

40 When the sentencing judge asked defence counsel to explain how this diagnosis was relevant to Mr Chandler's culpability, counsel acknowledged - as did Dr Grech in his report - that Mr Chandler was 'not entirely oblivious to the fact that his involvement in the attempted manufacture of amphetamines and related substances constituted serious criminal behaviour'. The submission was nevertheless made, and maintained in the recent material, that the disorder was relevant to culpability.

1. [Mr Chandler] has not been able to develop a prosocial outlet for his unhealthy fascination with things chemical, such an obsession being a typical consequence of his condition.
2. [Mr Chandler's] ongoing difficulty with work and study, which was a consequence of his Asperger's, provided the impetus for experimentation with illicit drugs. This in turn contributed to his existing interest in chemical science such that [Mr Chandler's] fascination with the manipulation of chemicals and creating things manifest as the production of illicit substances.
   1. This manifestation ultimately corresponded with the interests of his closest childhood friend, who was able to utilise [Mr Chandler's] obsession as part of the operation.

1. [Mr Chandler's] overriding obsession with the process, along with the absence of prosocial influences, created a situation where his judgment was impaired in a number of ways, compounding with the fact that with Asperger's Disorder there is a fundamental difficulty and disconnection between understanding the cause and effects of one's actions.

The good will and easy rapport that was established between Mr Chandler and the late Oscar Simsek, as well as Mr Chandler's prior gravitation towards experimentation with illicit substances (arising from his underlying mood-related difficulties and his natural curiosity) and his frustrated ability to work in conventional modes of chemistry were factors in his descent down a path of minimum resistance.

...

In Mr Chandler's case, it appears to be the case that his utter failure in life (academically and socially), his social phobia and his propensity towards depression preceded his foray into experimentation with illicit substances (cannabis, ecstasy and amphetamines), and which, when combined with strong peer influences, cascaded with an ongoing inability to succeed in conventional pursuits, set the scene for his involvement in criminal activities. He relished in the challenge of fine honing a process and his co-defendant's reliance upon his technical ingenuity inflated his weak ego and reinforced a misguided sense of his own importance.

43 In the event, however, this submission was abandoned in the course of oral argument. That was a sensible concession, in our view. It cannot be doubted that Mr Chandler well knew that what he was doing was a grave breach of the criminal law. He is a person of high-level cognitive functioning who chose to turn his considerable skills to the manufacture of illegal drugs. The disorder from which he suffers has not been shown to be in any relevant sense causative of the offending.[21]

44 The second matter concerned Mr Chandler's clinical depression. At the time of Dr Grech's first report, in November 2007, it was noted that tests conducted in 2004 were 'reflective of significant clinical depression'. It was also noted that he had suffered depressive episodes in the past. The diagnosis, however, concentrated on the Asperger's Disorder.

45 The supplementary report of 22 November 2010 presents a different picture. Tests carried out in July 2010 were 'reflective of severe depression'. Mr Chandler reported 'thoughts of killing himself ... extreme pessimism about the future, a strong sense of punishment, loss of interest in everyday activities, a firm sense of worthlessness, lowered energy levels, disordered sleep, irritability and poor concentration'. Dr Grech also noted that Mr Chandler had been

inordinately affected and frustrated by being restricted to a custodial environment in which he has had little if any outlet for his intellectual and creative interests. ... Mr Chandler feels extremely lonely and isolated in prison and is perceived as strange by others within the system.

46 We accept that a person suffering from severe clinical depression would find the experience of imprisonment more burdensome than a person in normal health. Dr Grech's report of Mr Chandler's view of himself and the future underlines how difficult it would be.[22] This is a matter we have taken into account in mitigation of sentence.

47 On 2 December 2010, Mr Chandler was resentenced as set out in Table B.

48 We referred earlier[23] to Mr Paksoy's personal circumstances as at the date of his imprisonment. A number of character witnesses were called on the plea, who spoke of his good work ethic and his devotion to his daughter. The supplementary submission was supported by a favourable 'Behavioural Report' from Mr Paksoy's prison supervisor, and by a separate letter from the Office of Corrections describing Mr Paksoy's role as a mentor to intellectually disabled prisoners. He obtained this position after being interviewed by a panel of psychologists and senior custodial staff. According to the letter,

This is a full time position where Mr Paksoy resides in a unit that also has Intellectually Disabled prisoners placed. Mr Paksoy's role as a mentor is to provide these prisoners with assistance in daily living skills (ie. personal hygiene). Most importantly, his role is to be a role model and develop and improve these prisoners' understanding of their behaviours and increase their self-esteem. Mr Paksoy assists them to resolve issues they encounter and teaches them how to problem solve more effectively. The Intellectually Disabled prisoners have behaviour management plans in place and the mentor's role is to encourage these prisoners to use their strategies to reduce inappropriate behaviours and assist and advise them on more appropriate ways to communicate and interact with others.

Mr Paksoy also assists one particular Intellectual Disability prisoner by sitting with him during a full day computer course (weekly).

Mr Paksoy is currently involved in ongoing Mentor Training provided and facilitated by Corrections Victoria, Disability Pathways clinicians.

The Corrections Victoria Disability Pathways program values these roles as extremely important. To have Mr Paksoy in this position has enabled Loddon Prison to maintain the Intellectually Disabled Prisoners' placement at this medium security prison without incident.

49 Plainly enough, this is very important work, and Mr Paksoy's participation is a very positive sign for his rehabilitation. Although the importance of prisoner rehabilitation often goes unacknowledged in the increasingly punitive public debate about sentencing, it remains a matter of very great importance to the community, as well as to the individual. As this Court has said previously, sentencing courts should be astute to reward efforts at rehabilitation. This is a matter which enhances Mr Paksoy's position on resentencing, as compared to his position at the date of the plea.

50 Otherwise, as the supplementary submission acknowledges, Mr Paksoy 'has had a largely unremarkable experience in custody'. He did, for a period, suffer from depression but has taken medication to deal with it.

51 On 2 December 2010, Mr Paksoy was resentenced as set out in Table B.

Trafficking drug of dependence - large commercial quantity

Possessing substances, equipment, documents and materials for the purposes of trafficking in a drug of dependence

Trafficking drug of dependence - large commercial quantity

[1] Drugs, Poisons and Controlled Substances Act 1981 (Vic) ('DPCS Act') sch 11, pt 3.

[2] See R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591; R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 447 [10] (Chernov JA, with whom Winneke P and Buchanan JA agreed); R v Merrett, Piggott & Ferrari (2007) 14 VR 400, 392, [34]-[35]; R v Katsoulas [2008] VSCA 278, [9]-[13] (Redlich JA).

[3] [2009] VSCA 260, [22] (citations omitted).

[4] [2007] VSCA 1; (2007) 14 VR 392, 400 [35].

[5] [2006] VSCA 185; (2006) 14 VR 269.

[6] Sentencing Act 1991 (Vic) s 5(2)(b); DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 552 [77]-[78].

[7] See DPP v Dowie [2009] VSCA 154; (2009) 196 A Crim R 288, 297 [25].

[8] [2006] VSCA 237.

[11] [2007] VSCA 154 ('Downing').

[16] [2007] VSCA 270; (2007) 17 VR 454 ('Ahmed').

[19] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306.

[21] Cf R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (point 1).

[22] Cf The Queen v Vardouniotis [2007] VSCA 62; (2007) 171 A Crim R 227, 235 [30].