Uncontroversial circumstances of the offending

1. Between 25 February and 9 March 2022, Australian Border Force intercepted three packages of testosterone - in total weighing 2,917 g - addressed to the applicant. The packages all originated from an address in Zhuhai in China. One package was sent to the applicant's address, and the other two packages, to addresses which the applicant later admitted to police were associated with friends (charge 1, attempting to possess testosterone).[2]
2. On 13 July 2022, police attended the applicant's home residence and executed a search warrant. They located the following drugs, substances, equipment and documents.[3]
3. Drugs of dependence:

(a) a quantity of testosterone - 8,399 g (charge 2, traffick Testosterone (CQ)).[4]

(b) a package of MDMA weighing 994.6 g located in the applicant's walk-in wardrobe in her bedroom (charge 3, traffick MDMA (CQ)).[5]

(c) a quantity of trenbolone (steroids) in vials stored in three containers in separate rooms across of the house weighing a total of 5,252 g (charge 4, traffick Trenbolone (CQ)).[6]

(d) Bulk quantities of manufactured Phenazolam tablets (fake Xanax) weighing over 20 kg (58,000 pills) (charge 5, traffick Phenazolam).

(e) A variety of other steroids and anabolic acids. These included 3,342 g of oxymetholone, 2,893 g of Drostanolone, and just over 1 kg each of Nandolone and Boldernone (charge 6, possess various drugs of dependence).

(f) An extensive amount of drug preparation equipment was located in multiple rooms and areas throughout the house including:

(i) An electric pill press in an upstairs bedroom (charge 7, possess tablet press). This pill press was used to produce the fake Xanax. Powder and produced pills were located in the catchment container of the pill press.

(ii) Large amounts of chemicals, various substances and other tablets were found. Some were labelled with names such as 'Viagra', 'Cialis', 'Sustanon', 'Equipose' and 'Deca' (summary charge 12, possess variety of pharmaceutical drugs).

(iii) A clandestine steroid processing plant in one of the upstairs bedrooms. A drug preparation system was set up across two tables. Pills, chemicals and vials were located in this room.

(iv) A separate tablet bottling area located on the upstairs landing.

(v) A separate rigid industrial shop press located in the garage.[7]

1. The police also located documents confirming the applicant's acquisition of two pill stamp dies, with the 'Superman' motif and the 'Rolls Royce' motif.
2. False identification documents - including drivers' licenses - were located in large plastic tubs (charge 8, make false document).
3. The police located fireworks (summary charge 21, unauthorised storage of explosives), a baton and a taser (summary charge 22, possess prohibited weapons), printed labels, a number of printers, a large amount of cash, a cash counting machine, tick books, laptops, and SIM cards.
4. The police obtained the following evidence from the applicant's phone:

(a) Searches for drug names, including Xanax, and images of Xanax tablets which had the appearance of an advertisement for sale.

(b) Orders for drug production equipment and products.

(c) An electronic tick book.

(d) References to the delivery of large amounts of Valium and Xanax.

(e) Text messages concerning the sale of Xanax and the applicant's complaints that someone is using her Xanax label design.

1. When the applicant was placed under arrest she was asked about the chemicals and the pill press upstairs. She responded, 'I don't know. I don't go into those rooms, I've been told not to. I don't ask questions.' When the applicant was subsequently asked 'Who told you not to go into the room?' she did not respond.[8]
2. In her record of interview, the applicant answered mostly 'no comment' to questions asked by police.[9] However, she admitted that the testosterone packages from China were sent to two addresses which belonged to her friends. She said the cash found at her premises came from winnings at the pokies. She also said that people are coming and going all the time from the house because she was not great on her own.[10]

1. The applicant was able to call in aid a number of mitigating and personal factors:

(a) The applicant was 38 years of age at the time of her arrest. The applicant had a difficult and traumatic childhood which the sentencing judge accepted contributed to the applicant's poor decision-making from a young age. The applicant completed year 12 but did not complete her university studies.

(b) The applicant began using cannabis as a teenager. She left home at age 18 and started work in the exotic dance industry where she began using cocaine, amphetamines, ecstasy and methylamphetamine.

(c) The applicant had an addiction to drugs - including methylamphetamine - for 20 years. The sentencing judge accepted that the applicant's drug addiction had some role to play in the offending. The judge noted that while this did not mitigate the applicant's offending, it placed it in a category of seriousness below that of a businessperson who was trafficking only for profit.[11]

(d) The judge took into account that she had no prior convictions. The sentencing judge did not accept that the applicant was of good character because of her admitted history of involvement in drugs.[12]

(e) It was the applicant's first time in custody. The sentencing judge acknowledged that her period of incarceration has been difficult. It commenced when there were pandemic restrictions. In addition, there has been her isolation, limited contact with family, drug withdrawal and the delay in sentencing.[13]

(f) The applicant entered a plea of guilty at an early stage which provided a 'utilitarian benefit' at a relevant post-pandemic time.[14] However, there was no evidence of remorse over and above her plea of guilty. She had not offered to assist authorities and had sought to minimise her offending.'[15]

(g) Although the delay was not inordinate, the judge accepted that the applicant had had the matter hanging over her head for over two years since being charged. The judge took into account the substantial gains she had made in her rehabilitation and drug recovery and found that she had very good prospects of rehabilitation.[16]

1. As to the objective seriousness of the offending, the sentencing judge identified the following relevant features:

(a) The substantial quantity of the MDMA (996.4 g mixed)[17] being nearly double the CQ threshold (500 g) and just 5.4 g below the large commercial quantity threshold (LCQ) (1 kg).[18] The judge noted that the seriousness of this offence is apparent from its 25-year maximum period of imprisonment.[19]

(b) The significant quantities of the other drugs and substances (especially the Testosterone, Phenazolam, and Trenbolone).

(c) The sophisticated way in which the Phenazolam (fake Xanax) and the Trenbalone (steroids) were prepared, packaged and labelled. This placed the trafficking charges for these substances at the higher end of the range of seriousness for this type of offending.[20]

(a) It was 'difficult to imagine a more systematic operation'.[21]

(b) The applicant's moral culpability was high.[22]

(c) While most of the offending was on a single date, she considered 'the size and nature of the enterprise at your home, together with the large quantity and variety of pharmaceutical and illicit drugs, place[d] it in the mid to high range of seriousness for offending of this type'.[23]

1. She noted the applicant fell to be sentenced as a serious offender for charges 3 (traffick MDMA (CQ)) and 4 (traffick Trenbolone (CQ)) and that the principal purpose of those sentences was the protection of the community.[24] The sentencing judge emphasised that general deterrence was a very important aspect of the sentences on those charges.

1. An assessment of this proposed ground of appeal requires an appreciation of how the applicant framed her case at the plea hearing.
2. The applicant's case at the plea was as follows:[25]

(a) In relation to all of the drug activities, the applicant was 'nothing more than a storeman', who was acting under direction of others.

(b) She leased some spare rooms within her house and in return she was provided with rental assistance and money to feed her drug habit.

(c) She had no knowledge of what took place in the upstairs spare bedrooms (which contained an operating pill press and clandestine laboratory respectively, and various pills and chemicals).

(d) She was 'a gram only seller' (of methylamphetamine) to friends. She was not involved in the manufacturing process of the tablets, but she assisted with the preparation of the Xanax tablets having made the labels. Otherwise, she had no active involvement in the trafficking activities.

(e) The applicant relied upon a text exchange with an associate which the applicant argued demonstrated that she was acting on instructions from someone else:

• 'How much for Xanax did U find out' to which the applicant responded 'He said I'm not allowed to sell any at the moment. Oops. I'll ask again when we get more bottles'
• ('The Xanax text exchange').[26]

(f) She was looking to 'get out' and move to Queensland when the second pill press arrived (which was located in the garage).

(g) There was no evidence that the applicant was aware of the weight or purity of the MDMA and there was no telephone or forensic evidence linking her to the MDMA.

(h) A person conducting an 'in-depth knowledgeable sophisticated operation' would not be sitting on the floor smoking ice when the police arrived. An offender with that type of involvement would have had a greater volume of text messages conducting the business with sales to the public.

1. The plea was conducted upon the basis that the applicant was engaged in one unified mixed drug enterprise, and that the applicant was a 'storeman' for all of these activities.
2. Apart from the Xanax text exchange, and some limited comments to police upon her arrest in her record of interview, the 'storeman' hypothesis was substantially based upon assertions from the Bar table. The applicant did not give evidence at the plea hearing.

The prosecution's case on the storeman hypothesis at the plea

(a) The applicant was operating and involved in a drug business on 13 July 2028 in which she was actively involved in the importation, manufacture, preparation, offer for sale and actual sale of various drugs.

(b) The applicant was a willing and enthusiastic participant in a very large enterprise.

(c) The irresistible inference was that the applicant was not only aware of the pill press but that she was actively involved in all stages of the process from manufacture to sale. The prosecutor relied on the applicant being a sole resident of the house. The content of her phone suggested she played an active role in printing labels, sourcing medicine bottles and providing purportedly pharmaceutical drugs for sale.

Sentencing judge's findings on the applicant's role

1. The question which the sentencing judge had to resolve was whether the applicant was a disinterested 'storeman' (as the applicant would have it) or whether she was actively, willingly and significantly involved in the trafficking activities linked to her home (as the prosecution would have it).
2. In substance, the sentencing judge 'rejected' that the applicant was a 'mere storeman' or a mere lacky.
3. In rejecting the suggestion that the applicant was a mere 'storeman', the sentencing judge made reference to following evidence:[27]

(a) The applicant's active involvement in sourcing the three packages of testosterone.

(b) The applicant was the sole resident in the house.

(c) The scale of the drugs and substances involved and the estimated potential profit.

(d) The extensive drug preparation equipment - including the pill press and clandestine laboratory - at her home.

(e) While the two upstairs bedrooms (containing the clandestine laboratory and the pill press) were lockable, the keys were in the locks when the police arrived. In the laboratory, the police found a can of soft drink with her fingerprints on it.

(f) At the time of the execution of the search warrant, the pill press in the upstairs bedroom appeared to have recently been used. The judge said 'it is inconceivable' the applicant would not know or see that it was operating when she was there.[28]

(1) The finding of payment receipts dated 30 June 2022 in her name for the purchase of two pill stamp dies (Superman and Rolls-Royce).

(g) The applicant's phone analysis disclosed the applicant's 'significant involvement and participation' in the drug-trafficking operation. For example, the phone analysis included data confirming the purchase of the pill stamp dies, searches for wholesale plastic medicine bottles, promotional images for Xanax tablets, confirmation of the purchase of products used in manufacturing pills, an electronic tick book (which recorded the sale of 'ice' and 'GHB') and messages in relation to the sale of drugs.

(h) The sentencing judge appears to have allowed for the possibility that there were others involved in this enterprise, and that the applicant may have acted under some direction, but the evidence did not allow for a conclusive finding on the 'degree or extent' of the involvement of other persons. The sentencing judge concluded:

• If there were others involved in your business, such as for instance the 'he' to whom you refer in the text message in relation to the sale of the Xanax, there is no evidence of the degree or extent of their involvement in the operation, over and above that in the text message.[29]

1. In a nutshell, the judge rejected the hypothesis that the applicant was a 'mere storeman' acting only on the directions of others, concluding that she was 'actively and knowingly engaged' or had 'significant involvement and participation' in this drug enterprise. When read as whole, these core findings were made beyond reasonable doubt. The sentencing judge found that the size and nature of the enterprise at the applicant's home, and the quantity and variety of drugs, placed the overall offending in the mid-to-high range of seriousness.[30]
2. Generally, the judge did not discriminate between the various drugs on the question of role. Thus, these core holdings as to role extended to the applicant's CQ trafficking in the MDMA.[31]
3. While the sentencing judge did not discriminate between the various drugs on the question of role generally, she made some specific observations in relation to the applicant's specific activities concerning particular drugs. Mostly these observations related to the applicant's dealings relating to the illicit steroids, pharmaceuticals and similar substances. The judge made one finding relating to the MDMA:

The New Dawn invoice and payment receipt dated 30 June 2022, in your name for the purchase of two pill stamp dies, one Superman, one Rolls Royce, supports the prosecution position of your willing awareness of and preparedness to use the pill press.[32]

...

I also find beyond reasonable doubt that you sourced the pill die stamps commonly used to stamp illicit drug tablets such as MDMA less than two weeks prior to the discovery of the commercial quantity of MDMA in your wardrobe. That links you to that MDMA and to trafficking it.[33]

1. The judge did not affix a particular label to the applicant's position in the enterprise, place the applicant at any particular rung within a hierarchy, or make a finding that the applicant was the sole operator, proprietor or head of this trafficking business.

1. In her written case in this application, the applicant has now conceded that it was open to the sentencing judge to reject the 'storeman' hypothesis in relation to her role in respect of charge 1 (attempted possession of testosterone), charge 2 (traffick of testosterone), and charge 5 (traffick counterfeit Xanax, ie, Phenazolam). The applicant also does not challenge that finding insofar as it relates to charge 4 (traffick Trenbolone). At least in respect to these activities, the applicant takes no issue with the finding that the applicant was 'actively and knowingly engaged' or had 'significant involvement and participation'.
2. Nevertheless, the applicant submits that it was not open to conclude that the applicant had the same role in the MDMA CQ trafficking offence. The applicant says:

(a) The analysis of the applicant's phone did not reveal any evidence relating to trafficking MDMA like it did in relation to the trafficking of Phenazolam (counterfeit Xanax) and steroids.

(b) The applicant's text messages with associates does not necessarily relate to MDMA in circumstances where the applicant was selling other drugs. In other words, if ambiguous, the communications are consistent with having related to the other drugs and substances.

(c) The applicant's home was not set up for the trafficking of MDMA in the same way as it was set up for the trafficking of Phenazolam (counterfeit Xanax) and steroids.

(d) There was no evidence that the tick books were associated with the sale of MDMA.

(e) There was no fingerprint or DNA evidence linking the applicant to the MDMA packaging.

(f) There was no evidence of significant enrichment and certainly none attributable to MDMA.

(g) As she did at the plea, the applicant relies upon the Xanax text exchange as showing that she was subordinate in the trafficking hierarchy and was acting under direction.

1. The applicant also argues that the sentencing judge wrongly linked the Superman and Rolls-Royce stamp dies (purchased in the applicant's name) to the MDMA. The applicant also points out that the prosecution did not make this submission at the plea. It was not open for the sentencing judge to make this finding in circumstances where the die stamps themselves were not found in use at the address, and where drugs other than MDMA were being produced using the pill press.
2. In support of her contention that the sentencing judge overstated the applicant's role for charge 3, the applicant relies upon the case of Elkadi v The King.[34] In Elkadi, the offender received the same sentence of 6 years' imprisonment for CQ trafficking in a similar quantity of MDMA. The offender in Elkadi was one of three people operating a sophisticated enterprise on the dark web. The applicant had many mitigating circumstances put on her behalf at her plea hearing which were not available to the offender in Elkadi. The fact that the applicant received a comparable sentence further illustrates, the applicant says, that the sentencing judge overstated the applicant's role for charge 3.

1. The respondent submitted in their written case that the applicant's concessions concerning the judge's findings as to the applicant's significant and active role in the non-MDMA drug activities were significant.
2. This is because, the respondent says, the plea was conducted by both parties that the applicant was part of a singular enterprise, and this included the MDMA trafficking. At no stage during the plea did the applicant seek to submit that the MDMA CQ trafficking was part of a separate enterprise. The judge sentenced the applicant on the basis that this was a single enterprise, in respect of which the possession of the MDMA was 'evidence of the diversification of the enterprise to incorporate street drugs'.[35] The respondent points out that this finding is not challenged.
3. The respondent further submits that:

(a) The applicant did not offer any explanation as to her role in respect of the MDMA in either her record of interview, or in evidence on the plea.

(b) There was no evidentiary basis upon which the judge could meaningfully distinguish between the applicant's role in respect of charges 1, 2, 4 and 5, and her role in respect of charge 3.

(c) Even with the Xanax text exchange evidence, there was no evidence capable of supporting an inference that the applicant had a lesser role in respect of the MDMA.

(d) The absence of evidence linking the applicant to the sale of the MDMA is insufficient of itself to necessitate a finding that the applicant had a comparatively lesser role in respect of that charge.

1. The respondent submits that it was open to the sentencing judge to find that:

(a) The applicant was a willing and enthusiastic participant in a very large drug trafficking enterprise.

(b) The applicant was actively involved in the importation, manufacture, preparation, offer for sale and actual sale of various drugs.

1. The respondent submits that the sentencing judge did not otherwise affix a particular label to the applicant's involvement in the enterprise.
2. As for the judge's reliance upon the Superman and Rolls-Royce pill die stamps, the respondent submits that, at the plea hearing, the sentencing judge made the observation that these pill die stamps were 'commonly used to stamp illicit drug tablets such as MDMA', and no issue was taken at that time by the applicant.
3. Even if this finding was impermissible, it had no additional bearing on the judge's assessment of the applicant's role in respect of trafficking the MDMA. The applicant was already linked to the MDMA by reason of it being found in the wardrobe of her bedroom, in circumstances where she was the sole resident of the house and in the context of her playing an active role in the drug-trafficking enterprise operating from that house. Further, the applicant acknowledged that she was trafficking the MDMA by her plea of guilty. Even putting the pill die stamp finding to one side, her Honour's overall conclusion as to the applicant's involvement in trafficking in the MDMA was well open.
4. Finally, the respondent submits that even if error was established concerning the Superman and Rolls-Royce pill die stamps and the MDMA, there is no reasonable prospect of lesser sentence. In support of this submission, the respondent relies upon statements by this Court that sentences well into the double figures may be expected for CQ trafficking where the quantity trafficked approaches the LCQ threshold.[36]

1. It is first convenient to summarise the relevant legal principles:[37]

(a) In cases of trafficking drugs of dependence, an accused's role, and their position in the drug trafficking hierarchy, is a relevant matter when assessing the seriousness of the offending.[38]

(b) It is important that any label attaching to an accused's role not obscure the nature and extent of their actions and involvement in the offending.[39]

(c) It is not essential that a sentencing judge establish the precise role of an offender in a criminal hierarchy.[40]

(d) A judge is only able to sentence on the basis of the facts known to the court, and a full picture of the relative roles and responsibilities in a drug trafficking operation may not be known with any precision.[41]

(e) Quantity is a highly relevant consideration in sentencing for trafficking offences. Other things being equal, the greater the quantity trafficked the more serious the offence.[42]

(f) Where an offender seeks a mitigatory finding that they had a particularly lowly role in a criminal hierarchy - for example, a 'mere courier', 'mule', or 'house sitter' - this requires a sound evidentiary basis. It is not a finding 'to be made by default or to be inferred simply from an absence of evidence'.[43]

(g) It follows that the quantity of the drug involved, and the circumstances in which it is found, is likely to be a highly relevant factor in any assessment of a mitigatory claim that the accused played a lowly role, with limited knowledge and no expectation of financial reward. In the absence of a sound evidential foundation which sustains such inferences (on the balance of probabilities), a level of culpability can be implied from the scale or magnitude of the illicit drugs trafficked.[44]

(h) Finally, the question on appeal is whether the sentencing judge's findings as to the offender's role were reasonably open on the evidence, as these are findings of fact.[45]

1. In my view, the applicant's proposed ground of appeal represents a significant departure from her case presented at the plea hearing.
2. Her case at the plea hearing was advanced upon the basis that this was a single integrated drug trafficking enterprise in which she played a very lowly role - that of 'storeman' - with limited interest and knowledge, and with an expectation of only a modest financial benefit in the form of some rent.
3. The plea proceeded upon the footing that the MDMA formed part of that singular enterprise. The holistic approach is exemplified by this submission made on the applicant's behalf at the plea by Senior Counsel:

She's under direction. Yes. And we say that person is presumably the person who's running the enterprise.[46]

1. It is true that at the plea the applicant emphasised the absence of forensic and telephone evidence specifically connecting her to the MDMA. But she did not do this to suggest that her relative culpability for the MDMA was less than that for the other drug activities. The argument was mounted in support of the broader proposition that her role for the entire enterprise was that of 'lowly storeman'.
2. The judge engaged in her fact finding, and exercised her sentencing discretion, in conformity with the way in which the defence framed the controversy at the plea. The sentencing judge's conclusion that the applicant was not a mere disinterested 'storeman' with minimal knowledge, and with a modest expectation of financial benefit thus applied across all the drug activities.
3. In this application, the applicant now accepts - or at least does not challenge - those findings insofar as they relate to the non-MDMA trafficking activities at her house (charges 1, 2, 4 and 5). But the applicant now contends - contrary to the position she took at the plea - that she had a lesser role in the trafficking in respect of the MDMA (charge 3) than she did in respect of these other drug and substance activities (charges 1, 2, 4 and 5). Contrary to what the applicant had effectively accepted at the plea, it is now said that it was not reasonably open to the judge to find otherwise.
4. In my view, the approach now taken by the applicant contradicts the case presented by her at the plea hearing. It supplies a good reason to not entertain this ground of appeal. Absent circumstances which demonstrate that there has been a miscarriage of justice arising from the plea and sentence, this Court will 'usually be reluctant to entertain appeal grounds that seek to resile from concessions made below or are a contradiction of submissions previously made'.[47]
5. In the end, I have reached the view that the proposed ground for appeal is unarguable on its merits. This application can be resolved upon that basis. The manner in which the plea was contested forms the backdrop to that analysis. It is my view that the applicant approached this plea hearing in the manner in which she did for considered and realistic forensic reasons, having regard to the state of the evidence.
6. I now turn to address this evidence.

Findings that applicant did not play lowly storeman role on the MDMA (CQ)

1. The applicant contends that the sentencing judge 'overstated the applicant's role'. The contention is a little opaque. The applicant has not identified a specific finding made by the judge - as to her role in relation to the MDMA - which she attacks.
2. Of course the judge, unsurprisingly, did not discriminate in her assessment of the applicant's role, as between the drugs, because she was not asked to do this.
3. It is important to observe that the sentencing judge did not make a specific finding as to where the applicant precisely sat within this overall enterprise. The judge rejected the proposition that the applicant was a disinterested 'mere storeman' with limited knowledge and interest, finding instead that she was an active, knowing and significant participant in the trafficking activities at her house. The latter finding was largely a corollary of the former. But the judge did not exclude that others were involved, and she did not positively conclude that the applicant was the sole proprietor or head of this trafficking enterprise.
4. I take the applicant's complaint - that the judge 'overstated the applicant's role' - to be that it was not open to the judge to:

(a) reject the proposition that the applicant played a low-level disinterested storeman role in relation to the MDMA trafficking (CQ).

(b) find that the applicant played an active, knowing and interested role in relation to the MDMA trafficking (CQ).

(c) not to find that the applicant played a materially lesser role in relation to the MDMA trafficking (CQ) than she did in the drug activities covered by charges 1, 2, 4 and 5.

1. Much of the applicant's argument rests upon the absence of evidential links between the applicant and the MDMA. At the very least, she says there is an absence of a link of the kind which can be seen with respect to the other drug activities (covered by charges 1, 2, 4 and 5) such as phone evidence, forensic evidence, transactional evidence in the tick books. The applicant also points to the drug preparation evidence which she says concerns the other drugs and substances. In this regard, the evidence concerning the Superman and Rolls-Royce stamp dies did not, the applicant says, link her to the MDMA.
2. There is merit to the underlying premise of the applicant's argument. Once the evidence concerning the Superman and Rolls-Royce stamp dies is put to one side (I will address this specifically later), the phone, forensic and preparation evidence does seem to be concerned (or largely concerned) with the other drug activities.
3. But it does not follow that the applicant played a lowly, unknowing and disinterested storeman role in relation to the MDMA, or that her role or culpability was relatively lower in relation to the MDMA than for the other drug activities.
4. In the first place, it is important to address what seems to be a theme to some of the applicant's arguments that she was not really connected to the MDMA. It is to be recalled that, by her plea of guilty, the applicant admitted to intending to traffick in at least a CQ of MDMA. By her plea, the applicant was aware that there was a significant or real chance that the amount of drug trafficked was not less than the CQ.
5. While the plea does not itself provide a measurement of role, the contextual circumstances do illuminate her role.
6. The applicant's case rests upon the proposition that she was nothing more than a street level hand-to-mouth drug trafficker. All she did was to make her house available for the use by others, with very modest expectations of financial reward (in return for some rent). These people were 'coming and going', but she was otherwise ignorant and disinterested in their activities and had no meaningful involvement. In some ways, on her version advanced at the plea, she was less involved than a mere 'storeman'. She simply made her house available for the use of the drug traffickers.
7. Personally hiding and having control of nearly twice the CQ of MDMA undermines this claim.
8. The quantity of the MDMA was very significant - nearly twice the CQ threshold. As senior counsel for the applicant acknowledged at the plea, even if she did not know the precise quantity or its purity, 'it's a lot' of this drug. The applicant was, therefore, closely and exclusively connected to this drug.
9. The MDMA was secreted in a private space closely controlled by the applicant - in a wardrobe in the applicant's own bedroom, in a house where she was the sole resident. The applicant was, therefore, exercising close and exclusive physical dominion over a substantial quantity of this drug.
10. An acute appreciation on her part of the importance and value of the drug, and of the significance of her own role, can be implied from these circumstances.
11. The absence of forensic evidence tying her to the packaging in which the MDMA was found, or phone evidence tying her to any MDMA dealings, does not supply affirmative evidence that she was an unknowing and disinterested 'storeman' acting only under direction with modest expectations of financial reward. That argument obscures the powerful evidence exclusively tying her to the package itself - through it being hidden in her wardrobe, in her bedroom, in her house.
12. Next, any assessment of her association with the MDMA must be viewed within the broader evidential context of her other trafficking activities. Once the mere storeman hypothesis in relation to her other trafficking activities was rejected, as a matter of common sense, this hypothesis lost its entire mooring as an explanation for any of the trafficking activities taking place in this house, including her admitted CQ trafficking of the MDMA. All these drug and trafficking activities were being conducted simultaneously by the applicant at her home, which she solely occupied. The notion that the applicant was a knowing and active participant in the other trafficking activities upstairs and throughout her house, but remained a disinterested and 'hapless'[48] house‑sitter or storeman in relation to the significant quantity of MDMA found in her bedroom wardrobe stretches credulity.
13. In the absence of evidence to the contrary, and applying the reasoning of Nettle JA from Dao, a degree of culpability is necessarily implied in the applicant's case. It was well open to the judge to conclude that the possession of the MDMA (CQ) represented 'the diversification of the enterprise to incorporate street drugs'.[49] Indeed, I think the judge was bound to reach that conclusion. The applicant does not even appear to quibble with that finding.
14. At all events, there was no evidential basis which supported, still less compelled, the conclusion that the applicant played a lowly role in relation to the MDMA, or that she played a demonstrably less culpable role in relation to the MDMA relative to the other drug activities:

(a) In her record of interview, the applicant did not offer any explanation as to her role in any of the trafficking activities, including her trafficking of the MDMA (CQ).

(b) The applicant did not give evidence on the plea concerning the MDMA in her bedroom wardrobe.

(c) There was no evidence which affirmatively placed the applicant in a particularly lowly position in relation to her trafficking of the MDMA (CQ).

(d) There was no evidence offered by the applicant that she played a different and lesser role in her trafficking of the MDMA (CQ) than she did in relation to the other drug activities.

(e) There was no evidence offered by the applicant that her trafficking of the MDMA (CQ) was unconnected with the other trafficking activities.

1. The applicant still places significant reliance upon the Xanax text exchange. This is misplaced:

(a) The Xanax text exchange does not supply any evidence that the applicant was a mere storeperson in relation the counterfeit Xanax. Still less did it show that she occupied a lowly role in relation to the MDMA (CQ) trafficking.

(b) At its highest - from the applicant's standpoint - the Xanax text exchange shows that others might have been involved in this enterprise, and that someone may have been above the applicant. But the mere fact that the applicant was acting under the direction of others does not support the conclusion that she was a mere 'storeperson' or lacky. The involvement of others above the applicant does not preclude the applicant's active and knowing engagement in the enterprise.

(c) There was otherwise no evidence of the degree or extent of other persons' involvement in the trafficking operation, or specifically in relation to her trafficking of the MDMA (CQ).[50]

1. In the face of this evidential framework, it is understandable why the applicant did not, at the plea hearing, advance the implausible and artificial scenario that she may have been actively, knowingly and significantly involved in all the trafficking activities, save for the MDMA (CQ) trafficking. The approach taken at the plea, reflects the reality that there was, logically, no basis to materially distinguish the applicant's role or culpability in relation to her admitted trafficking of the MDMA (CQ) under charge 3 from her relative role and culpability in the drug activities under charges 1, 2, 4 and 5.

1. The applicant then makes some arguments about a single past sentencing case - Elkadi[51] - where the accused received the same sentence as the applicant (6 years' imprisonment) for CQ trafficking in a similar quantity of MDMA. This further suggests, the applicant says, that the sentencing judge 'overstated the applicant's role for charge 3'.
2. I reject this argument.
3. In Gregory, this Court concluded that current sentencing practice for CQ quantity trafficking in the upper category of the offence 'is plainly inadequate'.[52]
4. The Court observed that:

[i]t would therefore be expected - and Parliament must be taken to have intended - that there would be a spread of sentences across the statistical range. In particular, sentences well into double figures would have been expected for CQ trafficking offences where one or more of the following features was present:

• the quantity involved approached the LCQ threshold;

• the offender was in charge of the trafficking business;

• the business was conducted for a substantial period;

• the offender pleaded not guilty; and/or

• the offender had relevant prior convictions.[53]

1. These observations have since been cited with approval, and applied, by this Court.[54]
2. On the metric of quantity, the applicant's offending was very much at the upper end of seriousness for this offence. As I have said above, quantity is an important indicator of the gravity of the offending, and so it was here.[55]
3. In my view, notwithstanding the applicant's guilty plea, lack of criminal history, efforts at rehabilitation and other matters in mitigation, once it is accepted that she sat above a lowly functionary or storeperson, the sentence of 6 years' imprisonment for trafficking for charge 3 was lenient having regard to:

(a) The maximum sentence for that offence is 25 years' imprisonment, reflecting the seriousness of the offending.

(b) Given the quantity of drugs involved, clearly, the applicant's offending in relation to charge 3 - on this measure alone - was grave.

(c) The fact that the applicant fell to be sentenced as a serious drug offender for charge 3 (trafficking in the MDMA (CQ)).

(d) The applicant's high moral culpability.[56]

(e) The emphasis which had to be placed upon general deterrence.[57]

1. One explanation for the leniency of the sentence might be that the judge has made allowance for the fact that the evidential landscape as to the role of the applicant was incomplete. The authorities recognise that the issue of the role of an offender in a drug trafficking enterprise - ancillary or principal - is not 'a 'binary one'.[58]
2. Certainly, a sentence of 6 years' imprisonment is self-evidently not of the order which Gregory suggests would be expected for CQ trafficking offending involving quantities of this order (approaching the LCQ threshold) by someone who has been placed at the top of the hierarchy, or near to it. In my view, a sentence of this magnitude goes nowhere near implying that the judge misapprehended the applicant's role and culpability.
3. The applicant's reliance on Elkadi wrongly treats a single past sentencing decision as some kind of binding precedent which invites a parity comparison as if Elkadi were a co-offender.[59] The judge's consideration of the applicant's role falls to be assessed by reference to the evidence in this case, not the evidence in Elkadi. The leniency or severity of the sentence imposed can only be measured by reference to the broader sentencing practices and principles applicable to trafficking drugs in a CQ, not a solitary case.

The Superman and Rolls-Royce stamp dies to link the applicant to the MDMA

1. I turn now to the applicant's contention that the judge impermissibly used the Superman and Rolls-Royce stamp dies to link the applicant to the MDMA. The judge made these findings relating to the Superman and Rolls-Royce stamp dies:

The New Dawn invoice and payment receipt dated 30 June 2022, in your name for the purchase of two pill stamp dies, one Superman, one Rolls Royce, supports the prosecution position of your willing awareness of and preparedness to use the pill press.[60]

...

I also find beyond reasonable doubt that you sourced the pill die stamps commonly used to stamp illicit drug tablets such as MDMA less than two weeks prior to the discovery of the commercial quantity of MDMA in your wardrobe. That links you to that MDMA and to trafficking it. The remainder of the charges relate to the various drugs to be knowing.[61]

1. Complaint is now made by the applicant that it was not open to the sentencing judge to make the finding that these stamp dies linked the applicant to the MDMA in circumstances where the die stamps themselves were not found in use at the residence, and where drugs other than MDMA were being produced using the pill press.
2. Very little argument was made by either party concerning the question of whether this knowledge was common knowledge and not open to question.[62] There have been some cases in this Court where it has not been in issue that pills marked with a Superman motif are MDMA or ecstasy pills.[63] True also, at the plea hearing, the judge observed that she understood stamp dies with the motifs Superman and Rolls-Royce were commonly used to stamp 'ecstasy' tablets. The respondent notes that at the plea no issue was taken with this observation by the applicant.
3. Nevertheless, it seems to me that there is some force in the applicant's point that the judge may have overreached in making her finding that there was a concrete link between these stamp dies and their intended use to produce pills from the MDMA located in her wardrobe. The prosecution had not asserted that this was their case. There was no specific evidence on this issue.
4. In the circumstances, I am prepared to allow that it is at least arguable that the judge's conclusion - that the stamp dies linked the applicant to the MDMA - involved some speculation and was thus a factual error.
5. I turn then to whether it is reasonably arguable that it was a material error.[64] In Gillespie (a pseudonym) v The Queen, this Court said:

A mistake of the kind made by the sentencing judge here will not be an 'error in the sentence' so as to vitiate the sentencing discretion in every case. If it can be seen that the mistake was so insignificant that it 'could not have materially affected the decision' then it will not be an error 'in the sentence'. The court must be satisfied that the mistake could not have materially affected the decision before concluding that there is no error in the sentence. If there is such error, the court must then consider whether it is satisfied that a different sentence should be imposed.[65]

1. The test of materiality of an error was further explained in Repac v The King:

An error is material if, at the least, it had the capacity to influence the judge's instinctive synthesis of all the circumstances in arriving at the sentence imposed. The burden is on the respondent to demonstrate that it did not have such a capacity.[66]

1. At one level, the impugned finding was superfluous:

(a) The judge appears to have relied upon this evidence merely 'to link the applicant to that MDMA and to trafficking it'. Of course, this link between the applicant and the trafficking of the MDMA was already established by the applicant's plea of guilty and was thus not in issue.

(b) Also, for reasons which I have outlined, the fundamental conclusion reached by the judge - that the applicant was not a disinterested 'storeman' but an active and knowing participant in this entire enterprise including the MDMA - did not rest upon the establishment of an evidential link between the stamp dies and the possession of the MDMA.

1. Nevertheless, I accept that it is reasonably arguable that this evidence at least had the capacity to inform the assessment of the degree of the applicant's involvement or role in the MDMA trafficking.
2. This then leaves the question of whether - despite the establishment of a material error - it is reasonably arguable that a different sentence should be imposed. In my view, if the Court relied only upon the facts properly established, there is no reasonable prospect that the Court would impose a less severe sentence upon this applicant than 6 years' imprisonment for the trafficking of the MDMA (CQ), and consequently there is therefore no reasonable prospect of a reduced total effective head sentence.[67]
3. I have reached that conclusion because:

(a) On the facts properly established, there is no prospect that the applicant would be sentenced upon the basis that she was a lowly 'storeman' in relation to the trafficking of the MDMA (CQ). It is inevitable that the applicant would be sentenced upon the basis that she was a knowing and active participant in relation to all the drug-related activity at her house, including the trafficking of the MDMA (CQ). That is so, even if the state of the evidence does not allow for a more precise finding, with respect to her role or position within the drug trafficking enterprise. These conclusions do not turn upon the establishment of the connection between the Superman and Rolls-Royce die stamps and the MDMA located in her wardrobe.

(b) Once that is accepted, there is no reasonable prospect that the sentence of 6 years' imprisonment for charge 3 would be reduced. As I have said, having regard, in particular, to the principles set out in Gregory, this was a lenient sentence for someone who trafficked in nearly twice the commercial quantity of MDMA, who was actively involved and, demonstrably more than a minion, who fell to be sentenced as a serious offender and whose moral culpability was 'high'.

[5] The threshold for CQ is 500 g and LCQ is 1 kg.

[7] Reasons, [14], [16]-[17], [19].

[25] Largely taken from Reasons [33] and supplemented by some submission made in discussion at the plea.

[31] Reasons, [36], [38]-[39], [45].

[34] Elkadi v The King [2023] VSCA 328 (Macaulay and Taylor JJA) ('Elkadi').

[36] Citing Gregory v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, 24, [100] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151.

[37] In this respect, I have been assisted by the summaries provided in the parties' written cases.

[38] Lieu v The Queen [2016] VSCA 277, [41] (Beach and Kaye JJA); Gregory v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, [24] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151; McCabe v The King [2023] VSCA 329, [21] (Macaulay and Taylor JJA); Elkadi v the King [2023] VSCA 328, [30] (Macaulay and Taylor JJA).

[39] R v Olbrich (1999) 199 CLR 270, 279 (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Nguyen v The Queen [2019] VSCA 134, [59] (Priest and Beach JJA). See also Johnson v The Queen [2022] VSCA 9, [23] (McLeish JA).

[40] Dao v The Queen [2014] VSCA 93; (2014) 240 A Crim R 574, 587, [39] (Redlich); [2014] VSCA 93; R v Olbrich (1999) 199 CLR 270, 278, [14] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

[41] Awad v The Queen; Tambakakis v The Queen [2021] VSCA 285, [216] (McLeish and Niall JJA); Johnson v The Queen [2022] VSCA 9, [23] (McLeish JA).

[42] Gregory v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, [24] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151.

[43] Johnson v The Queen [2022] VSCA 9, [25] (McLeish JA); Dao v The Queen [2014] VSCA 93; (2014) 240 A Crim R 574, 582, [17] (Nettle JA).

[44] Dao v The Queen [2014] VSCA 93; (2014) 240 A Crim R 574, 582, [17] (Nettle JA).

[45] Carroll v The Queen [2011] VSCA 150, [16]-[18] (Maxwell P); Willis v The Queen [2016] VSCA 176, [94] (Weinberg and Beach JJA).

[47] Bednar v the Queen [2024] VSCA 180 (Emerton P, P McLeish and T Forrest JJA); Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 489-90, [11] (Redlich JA, Buchanan JA agreeing at 494, [28] and Mandie JA agreeing at 494, [29]); [2011] VSCA 45.

[48] Johnson v The Queen [2022] VSCA 9, [25] (McLeish JA); Dao v The Queen [2014] VSCA 93; (2014) 240 A Crim R 574, 582, [17] (Nettle JA).

[51] Elkadi v The King [2023] VSCA 328 (Macaulay and Taylor JJA).

[52] Gregory v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, 24, [100] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151.

[53] Gregory v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, 24, [98] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151 (emphasis added).

[54] DPP v Condo [2019] VSCA 181, [29] (Maxwell P, T Forrest and Weinberg JJA); Belhaj v The Queen [2025] VSCA 174 (Boyce JA).

[55] Dang v The Queen [2020] VSCA 24, [15]; Gregory v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, 8 [24], 24 [97] (Maxwell P, Redlich and Beach JJA).

[57] Johnson v The King [2022] VSCA 228, [24] (Priest AP and Niall JA).

[58] Nguyen v The Queen [2019] VSCA 134, [59] (Priest and Beach JJA).

[59] DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.

[62] See, eg, Evidence Act 2008 s 144.

[63] Eg, R v Johnston [2008] VSCA 133, [6]-[7] (Nettle JA); Schembri v The Queen [2020] VSCA 217, [16] (Maxwell P and Niall JA).

[64] Repac v The King [2023] VSCA 313, [37] (Macaulay and Whelan JJA).

[65] Gillespie (a pseudonym) v The Queen [2018] VSCA 151, [53] (Whelan and McLeish JJA).

[66] Repac v The King [2023] VSCA 313, [37] (Macaulay and Whelan JJA) (emphasis in original). See also Potter v The King [2023] VSCA 104, [32] (Niall and Hargrave JJA); Gundry v The King [2025] VSCA 233, [38]-[39] (Emerton P and Lyons JA).

[67] Criminal Procedure Act 2009 s 280(2).