Dawid v DPP [2013] VSCA 64

Court of Appeal (Vic)|2013-03-25|Before: Mr P, Nettle JA, Redlich JA, Whelan JA

Director Of Public Prosecutions v Dawid (Unreported, County Court of Victoria, 1 June 2012, Judge Patrick)

CRIMINAL LAW - Sentencing - Appeal - Trafficking large commercial quantity of drug of dependence (methylamphetamine) - Guilty plea at earliest opportunity - No previous convictions - Whether judge erred in taking into account assessment of strength of Crown case - Whether sentence manifestly excessive - Whether lack of parity with co-offenders sentenced for trafficking commercial quantity of methylamphetamine - Phillips v The Queen [2012] VSCA 140 applied.

1 For the reasons given by Kaye AJA I agree that the application for leave to appeal should be refused.

2 I agree with Kaye AJA. I only wish to add this. The alternative submission on ground 1 reflected the matters set out by Nettle JA in Phillips v The Queen.[1] Nettle JA held, as did the other judges constituting the bench of five in that case, that the preponderance of authority precludes the adoption of that approach in this Court.

3 The applicant pleaded guilty, in the County Court, to one charge of trafficking in a drug of dependence, namely methylamphetamine (a large commercial quantity) contrary to s 71 of the Drugs Poisons and Controlled Substances Act 1981 ('the Act'), and to one charge of trafficking in a drug of dependence, namely cocaine, contrary to s 71AC of the Act.

4 After hearing a plea made on behalf of the applicant, the judge, in a reserved decision, sentenced the applicant to a term of 8 years and 6 months' imprisonment on the first charge, and to a term of 2 years' imprisonment on the second charge. The judge directed that six months of the sentence, on the second charge, be served cumulatively with the sentence on the first charge, making a total effective sentence of 9 years' imprisonment. Her Honour set a minimum non-parole period of 6 years and 2 months. The pre-sentence detention of the applicant was declared as 303 days. Pursuant to s 6AAA of the Sentencing Act 1991, her Honour indicated that, but for the applicant's pleas of guilty, the sentence imposed would have been 13 years and 6 months' imprisonment, with a minimum non-parole period of 9 years and 6

months. The applicant seeks leave to appeal against that sentence.

5 The two charges, to which the applicant pleaded guilty, allege that, in each case, the applicant committed the offence of trafficking between 28 October 2010 and 3 August 2011. Thus, the Crown case was put on the basis (which was accepted by the applicant), that the applicant was in the business of trafficking, as defined by R v Giretti.[2]

6 The Crown case arose out of an investigation by the Drug Squad, which identified the applicant, as well as Richard Barkho and Sargo Barkho, as suppliers of methylamphetamine to a number of persons, including Neil Turner and Andrew Borg. The investigation commenced on 27 October 2010. The evidence against the applicant, and Richard and Sargo Barkho, derived substantially from the use of a number of telephone intercepts, tracking devices, listening devices and optical surveillance devices, in addition to physical surveillance. It was common ground between the applicant, and the prosecution, that the amount trafficked by the applicant, in relation to the first charge, was between three and four kilograms of mixed methylamphetamine. The prosecution accepted that a portion of the total quantity of the methylamphetamine was at the lower range of purity. It was also accepted that half a kilogram of the methylamphetamine was of such poor quality that it was proposed that it be returned to the supplier. The value of the methylamphetamine, trafficked by the applicant, was calculated on the basis that he had trafficked methylamphetamine for $2,500 per ounce, which produced a total sale value of $343,500. It was also accepted that the amount of cocaine trafficked by the applicant, and that the cocaine was trafficked by the applicant at $10,000 per ounce, thus producing a total sale value of $60,000.

7 The prosecution case was that the applicant, Richard Barkho and Sargo Barkho acted in concert. The applicant and Richard Barkho were the most serious offenders who were charged with offences arising out of the investigation. The evidence demonstrated that the applicant had sourced and obtained the methylamphetamine and cocaine from Sydney, and cut them and divided them into smaller amounts. Barkho and he then on sold those substances to a number of different persons, including Neil Turner, Andrew Borg and others. The resume of the product of the surveillance and interception devices, contained in the prosecution opening, demonstrates that the applicant, on almost a daily basis, was involved in ordering and obtaining the substances from Sydney, arranging for the payment for the substances purchased from Sydney, collaborating with Richard Barkho, and having frequent contacts with Turner, Borg and others, in which he supplied, or arranged to supply, them with methylamphetamine and cocaine, and received payment in respect of them.

8 At the time of sentence (1 June 2012), the applicant was 36 years of age. His parents had migrated to Australia in the mid-1970s. The applicant has four siblings, none of whom have any previous convictions.

9 Although the applicant attended local primary and secondary schools, his capacity to write and read is extremely limited, and he is functionally illiterate. Having left school, he did not complete any formal trade training. He worked for a period of time as a labourer and in factory positions. In 2003, he established a café/restaurant business in partnership with another person. In order to do so, the applicant borrowed a significant amount of money from family and friends. Initially, the business was successful, but after a few years it experienced a major downturn. Ultimately, the business went into liquidation in 2006. For some unexplained reason, the applicant was left solely responsible for the debts incurred by the business. He was distressed by the failure of his business, for which he felt humiliated and embarrassed. Nonetheless, he gained some employment performing manual work delivering wine for a friend. In 2009, he injured his back, and ultimately his employment was terminated when his friend's business also experienced a downturn.

10 In the meantime, the applicant had taken to consuming illicit stimulants. He began to do so during the last year of operation of his business, in order to supplement his energies to assist him to meet his heavy work demands. His drug use escalated considerably when his business failed. As a result, the applicant experienced difficulties with his family, as well as the breakdown of his relationship with his then fiancé. In 2007, he spent three months overseas, in an endeavour to cure his addiction. However, when he returned to Australia late in 2007, he relapsed into the regular use of stimulants in social contexts. On his plea, he was described, by his counsel, as a 'sporadic social user' of illicit substances at the time at which his offending occurred.

11 The materials on the plea do not describe how the applicant became involved in the trafficking of methylamphetamine and cocaine. However, as is not uncommonly the case, it would appear that his trafficking had its genesis in his use of the substances. The applicant was arrested in August 2011, and he remained in custody until his sentence.

12 On his plea, counsel for the applicant relied principally on the following matters:

The applicant had no previous convictions.
The applicant pleaded guilty at the earliest possible opportunity. It was put that the plea had significant utilitarian value. In particular, it was submitted that the applicant could have put the prosecution to its proof that, throughout the period of trafficking, he had intended to traffic a large commercial quantity of methylamphetamine. In addition, it was submitted that the applicant's plea of guilty reflected his remorse for his wrongdoing.
It was submitted that the applicant was not at the highest level of the hierarchy in the offending in which he was involved. Rather, it was submitted that the applicant's Sydney suppliers should be regarded as the principals in the operation.
The applicant relied on a report by Mr Patrick Newton, a clinical psychologist, who found that, as a result of the applicant's incarceration, he was suffering from an adjustment disorder with anxiety.
The applicant was remorseful for his wrongdoing, which was out of character for the applicant.
The applicant had an impressive history of hard work. His learning difficulties, combined with the catastrophic failure of his business, had had a dramatic effect on the applicant's self-esteem and confidence, which in turn had played an important role in the applicant's involvement in first the use, and later trafficking, of illicit substances.
The applicant had good prospects of rehabilitation.

13 In addition, counsel for the applicant referred the judge to a number of previous sentencing decisions, including the decisions of the Court of Appeal in Trajkovski v The Queen,[3] Rizzo v The Queen[4] and Chandler & Pakso v The Queen,[5] and sentences at first instance in R v Ryan,[6] R v Issa[7] and R v Elias.[8] He submitted that, based on the sentencing range established by those cases, the appropriate sentence, on count 1, should be 6 to 7 years' imprisonment, and the appropriate sentence, in respect of charge number 2, should be one to two years' imprisonment. He submitted there should only be minimal cumulation of the sentence, on count 2, with the sentence imposed on count 1. Counsel submitted that the appropriate sentencing range in respect of the applicant was 'no more than' seven to eight years, with a minimum non-parole period four to five years' imprisonment.

14 In response, the prosecution submitted that the appropriate sentencing range for the applicant was from 9 to 11 years' imprisonment, with a minimum non-parole period of 6½ years to 8½ years. The prosecutor also referred to a number of other sentencing decisions, including Vasic v The Queen,[9] Ly v The Queen[10] and Dagher v The Queen.[11]

15 In her reasons for sentence, the sentencing judge acknowledged the matters which had been put in mitigation on behalf of the applicant on his plea. In particular her Honour noted that the applicant had no previous criminal record, and that he had expressed his remorse for his involvement in the drug trade. The judge considered that the applicant's plea of guilty had strong utilitarian value, and that it was an expression of the applicant's remorse. Her Honour noted that the applicant had indicated that he would plead guilty, at an early stage, and that he had never resiled from accepting responsibility for his actions. Her Honour regarded the applicant's plea as having utilitarian value in obviating the need for a relatively lengthy trial. Accordingly, her Honour recognised that the applicant was entitled to a 'significant discount' in sentence for his plea of guilty.

16 The judge also considered that the applicant's prospects for rehabilitation were reasonably good. Her Honour noted the matters set out in Mr Newton's report, and stated that the applicant's prospects of rehabilitation would be considerably enhanced, if he were able to engage in further education and counselling.

17 The judge characterised the offending by the applicant as very serious. The maximum penalty in relation to charge 1, namely life imprisonment, demonstrated that Parliament regarded this type of offending as one of the most serious types of crime. Her Honour noted that the applicant had been involved in obtaining relatively large quantities of drugs from Sydney, cutting them and dividing them into smaller amounts on selling them. She stated: 'You were dealing with large amounts of money and were keen to operate an efficient drug dealing business'. The judge referred to the importance of general deterrence in sentencing for offences of this type.

18 On that basis the judge imposed the sentences on the applicant, which I have already stated.

19 The applicant relies on three grounds of appeal, namely:

(1) The sentencing judge erred in taking into account, in assessing the utilitarian value of the applicant's guilty plea, the view that the Crown case against the applicant was reasonably strong.

(2) The individual sentences, the total effective sentence and the non-parole period are manifestly excessive, particularly having regard to the applicant's guilty plea, his acceptance of responsibility, his willingness to facilitate the course of justice and his remorse.

(3) The sentence imposed on charge 1 is considerably disparate with the sentence imposed on the co-offenders Andrew Borg and Neil Turner.

Ground 1: whether judge erred in taking into account strength of prosecution case

20 The applicant's submissions in relation to ground 1 are based on the part of the reasons of sentence of the judge, in which her Honour found that the guilty plea, by the applicant, had strong utilitarian value. In doing so, her Honour observed that the Crown case, in respect to the applicant, was relatively strong, and her Honour did not 'entirely' accept the applicant's counsel's assessment of the value of the plea.

21 It was submitted on behalf of the applicant that the judge erred in taking into account the strength of the prosecution case in assessing the utilitarian value of the plea of guilty. In Phillips v The Queen,[12] the Court of Appeal undertook an extensive review of the authorities relating to the value to be attached to a guilty plea. In doing so, the court accepted that an assessment of the strength of the Crown case might be relevant to determining the degree to which a plea of guilty reflected remorse on behalf of the accused. On the other hand, the court held that the strength or otherwise of the Crown case, against the accused, was not relevant to an assessment of the utilitarian value of the plea, save in the most exceptional case.[13]

22 In my view, the submission made on behalf of the applicant depends on an excessively literal construction of the sentencing judge's remarks. When those remarks are considered in their proper context, they do not reflect that the judge took into account her assessment of the Crown case, in determining the utilitarian value of the plea of guilty.

23 In the course of his plea, counsel for the applicant noted that, commonly, persons charged with trafficking in large commercial quantities of drugs choose to test an even overwhelming Crown case on the basis that they did not intend to traffic in a large commercial quantity. Counsel submitted that the plea of guilty, by the applicant, should be given substantial weight, both because of its utilitarian value, and also because of the level of remorse which could be inferred from it. Counsel submitted (correctly) that the strength of the Crown case is not relevant to the assessment of the utilitarian value of the plea. However he submitted that a plea of guilty at such an early stage, together with other indications of genuine remorse, offset the relevance of the strong Crown case. It was at that point that counsel then submitted that '... it cannot be said that the strength of the Crown case on the charge to which Mr Dawid was pleading guilty was unassailable'. Pausing there, in my view, it is clear that counsel directed that aspect of his submissions to the question of the extent to which the plea of guilty, by the applicant, reflected genuine remorse on his behalf.

24 It is in the context of those submissions that the judge, in her sentencing remarks, referred to the assessment by the applicant's counsel of the strength, or otherwise, of the Crown case against the applicant.

25 In the passage in question, the judge commenced by accepting that the applicant's plea of guilty had 'strong utilitarian value', and that also it was an expression of the applicant's remorse. Her Honour accepted that many persons, in the applicant's position, plead not guilty, and put the prosecution to the proof of the requisite intention over the whole period of the charges. It was at that point that the sentencing judge noted that the Crown case was relatively strong, and that it was the applicant's decision not to contest the matter. In that context, that observation was clearly a response to the proposition, advanced by the applicant's counsel, that the prosecution case was not so strong as to be unassailable. It was not directed to an assessment of the utilitarian value of the plea. Thus, in the next statement, her Honour stated that she regarded the plea as having a 'high utilitarian value in saving the cost and inconvenience of what could have been a relatively lengthy trial'. As such, her Honour specifically stated that the applicant was entitled to a 'significant discount' in sentence for his plea of guilty.

26 In that light, I do not accept the submission that the judge took into account an assessment of the strength of the prosecution case, in determining the utilitarian value of the plea. Accordingly, I reject ground 1 of the notice of appeal.

27 No doubt recognising the difficulty of advancing ground 1, in its current form, counsel for the applicant, in oral argument, also advanced an alternative submission, which he formulated as an additional (oral) ground of appeal. That submission was to the effect that the trial judge erred by underestimating the extent of the utilitarian value of the applicant's plea of guilty, and, in particular, by not according to it the weight of the utilitarian value, of that plea, as contended for by counsel on the plea.

28 In my view, there is no substance to the alternative submission so advanced by counsel for the applicant. On the plea, counsel had submitted that the plea '... should be considered to have high utilitarian value'. In particular, it was submitted that the weight to be accorded to the plea, in that respect, should take into account the fact that it was made at an early stage, and that the applicant had dispensed with the need for a committal proceeding. Those submissions were, in my view, adequately reflected, and accepted, by the judge in her sentencing reasons. Her Honour accurately summarised the relevant aspects of that submission. As I have already stated, her Honour concluded that the plea of guilty had 'strong utilitarian value'. In the same passage, in similar terms, she stated that she regarded the plea as having 'high utilitarian value in saving the cost and inconvenience of what would otherwise have been a relatively lengthy trial'. Her Honour also accepted that the plea of guilty was an indication of the applicant's remorse. For those reasons, her Honour stated that the applicant was entitled to a 'significant discount' in sentence for his plea of guilty. In that way, the judge adequately took into account the extent to which the plea of guilty had facilitated the course of justice, and had spared the community the expense, and the prosecution and law enforcement officers the burden, of a lengthy and difficult trial. Those matters are properly reflected in the judge's description of the extent of the utilitarian value of the plea, which I have just described, and her conclusion that, accordingly, the applicant was entitled to a 'significant' discount in his sentence as the result of his plea of guilty.

29 For those reasons, I do not accept the alternative submission, or the additional ground of appeal, propounded on behalf of the applicant.

Ground 2: whether sentences manifestly excessive

30 Ground 2 of the notice of appeal alleges that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. In oral submission, counsel for the applicant confined ground 2 to the sentence on count 1, and to the effect of that sentence on the total effective sentence, and the non-parole period fixed by the judge.

31 In particular, counsel for the applicant submitted that the sentence, in respect of count 1, was manifestly excessive, particularly in light of the applicant's lack of previous convictions, his early plea of guilty, the high utilitarian effect of that plea, his acceptance of responsibility, and his remorse. It was submitted that the amount of methylamphetamine trafficked by the applicant - between three kilograms and four kilograms - placed him in the lower range of offenders who have been sentenced for trafficking a large commercial quantity of a drug of dependence. In particular, counsel referred to a number of previous sentencing decisions, including some of those relied on by counsel for the applicant on the plea, and to which I have already referred.[14] Counsel submitted that the appropriate range of sentence, in respect of count 1, was that contended for by the applicant's counsel on the plea, namely 6 years to 7 years. He submitted that the sentence of 8 years and 6 months' imprisonment, imposed by the judge for count 1, was wholly outside the appropriate range of sentence, and thus manifestly excessive.

32 In response, counsel for the respondent submitted that the sentence, imposed by the judge in respect of count 1, was well within the appropriate range, particularly in light of the maximum sentence prescribed for the offence, namely, life imprisonment. He submitted that the applicant had embarked on a deliberate commercial enterprise in which he played a principal role. His sole motivation was financial gain. Unlike other cases, the applicant did not have any particular personal mitigating factors, such as ill health, or intellectual or psychological impairment. He submitted that the sentence, imposed on the applicant in respect of count 1, was at the lower end of the range.

33 In order to succeed on ground 2, the applicant must demonstrate that it was not reasonably open to the judge to impose the sentence on count 1, if she had given appropriate and sufficient weight to the relevant circumstances relating to the offending and to the applicant. In that way, the applicant must demonstrate that the sentence, imposed on count 1, was 'wholly outside the range of sentencing options available'.[15]

34 In the present case, as the judge correctly noted, the offending, in which the applicant engaged in respect of charge 1, was very serious. The applicant, with Richard Barkho, was involved in obtaining large quantities of drugs from Sydney, cutting and dividing them into small amounts, and then on selling them, to drug wholesalers. In that way the applicant, with Barkho, played the principal role in the sourcing of the prohibited substances from interstate, and for organising their distribution in Victoria. In doing so, the applicant dealt with large sums of money. As demonstrated by the prosecution summary, the applicant was involved in that enterprise on an almost daily basis. While the amounts involved in the offending (three kilograms to four kilograms) were less than in other cases, nevertheless the amount was at least three times the minimum quantity prescribed for the offence of trafficking in a large commercial quantity of drugs. The maximum prescribed sentence, of life imprisonment, indicates the gravity which Parliament, rightly, attaches to the type of offence in which the applicant chose to engage.

35 The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.

36 Taking all those considerations into account, and notwithstanding the mitigating circumstances relied on on the plea, and on appeal, I am not persuaded that the sentence imposed by the sentencing judge was beyond the range of sentences which would be appropriate for a person in the position of the applicant, for the offending in which the applicant engaged.

37 As I have noted, in support of his submission in respect of ground 2, counsel relied on a number of previous sentencing decisions in respect of drug trafficking offences. Those decisions are relevant to the determination of what has been described as the 'current sentencing practices' in respect of the offence in question, and thus to ensure that the sentence imposed on the applicant is, so far as possible, consistent with other sentences for like offending. However, as this Court has observed, on a number of occasions, there are significant limitations to the information which may be derived from the sentences imposed in other cases. As this Court stated in Hudson v The Queen:[16]

'Like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context, it has been said on many occasions that 'comparable cases' can only provide limited assistance to this Court. They may however be used in search of unifying principles. ...

...

A detailed examination of 'like' cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not to be regarded as some sort of 'benchmark' which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matters personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.

To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a 'like' case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. ...[17]

38 Bearing those propositions in mind, I have reviewed the cases referred to by counsel for the applicant on appeal, namely Rizzo v The Queen,[18] Trajkovski v The Queen,[19] S Wilson v The Queen, DPP v Sassine, DPP v Kalakias, V Wilson v The Queen[20] and the reasons for sentence in R v Ryan.[21] Not surprisingly, each of those cases differ, in material respects. In particular, there were material differences in the nature of the offending in each case, including the quantities trafficked, the periods over which the trafficking took place, and the particular role of the offender in question. In addition, in a number of the cases, the particular offender was sentenced on a combination of charges. That circumstance enlivened the application of the principles of totality, to ensure that the individual sentences, and the combined effect of them, did not exceed just punishment in the particular case.[22] In addition, in each case, the personal circumstances and antecedents of the offender varied to a marked degree.

39 The cases, to which counsel referred, are of greater assistance in identifying the particular principles which are to be applied in a case such as this, and, in particular, the seriousness of the offence of trafficking in a large commercial quantity of drugs, and the need to ensure that the sentence is sufficient to constitute a deterrent to others. Taking into account the differences in the individual circumstances and facts of each of the cases, and bearing in mind that in each case the court was either considering, or reviewing, the exercise of a discretion, I do not consider that the cases, to which counsel referred, demonstrate that the sentence imposed in this case, in respect of count 1, was wholly outside the range of sentences which would have been appropriate given the facts of the particular case.

40 For those reasons, I reject ground 2 of the notice of appeal.

Ground 3: whether the sentence, on charge 1, was manifestly disparate with the sentences imposed on the co-offenders Borg and Turner

41 Ground 3 alleges that the sentence, imposed in respect of count 1, is manifestly disparate with the sentences imposed on the co-offenders, Borg and Turner, who were each sentenced, by a different judge, to a term of 3 years' imprisonment, with a non-parole period of 18 months, in respect of one count of trafficking in a commercial quantity of a drug of dependence. In both cases, Turner and Borg were sentenced on the basis that the trafficking in a commercial quantity was at the 'upper end of the quantitative range' of one kilogram. The judge calculated that the sale value of one kilogram would have been in excess of $80,000. In each case, the offender had pleaded guilty.

42 Counsel for the applicant conceded that there are obvious differences between the offending by the applicant, and the offending of Borg and Turner. However, it was submitted that the disparity in the sentences imposed, on the one hand, on the applicant, and on the other hand, on Borg and Turner, is so great as to produce an undue disproportion between the sentences imposed on the applicant, and the sentences imposed on Borg and Turner. It was submitted that that disproportion was of such dimension as to give rise to a justifiable sense of grievance to the applicant.

43 For the purposes of determining the point raised by ground 3, the relevant principles, which are applicable to this case, may be shortly stated. Essentially, the principle of parity is based on the broad principle of equal justice. However, the concept of parity does not dictate that there is precise equality, or mathematical proportionality, in respect of the sentences imposed on co-offenders. Rather, the principle of equal justice requires that there should not be such a marked disparity between the sentences of co-offenders as to give rise to a 'justifiable sense of grievance', taking into account the different degrees of culpability of the co-offenders, or their different individual circumstances.[23]

44 The principle of parity is not confined to persons who are, strictly, co-offenders. It also applies, with appropriate adjustment, to offenders who have each been involved in the same common criminal enterprise.[24] Further, where there is some association between the offending of two or more offenders, the principles of equal justice, and consistency, may require that the sentence, which is under consideration, be adjusted in order to sufficiently conform with the sentence imposed on an offender for a related crime.[25]

45 In each case, the principles, which I have just discussed, do not dictate that the sentence of the offender should match, or that it should be in some manner mathematically proportionate to, the sentence already imposed on the other offender.[26] Further, where the other offender's sentence is inappropriately low, the principles of parity, or consistency, do not require, or justify, the imposition of a sentence on the offender in question which, as such, is manifestly inadequate.[27] In such a case, the sentence already passed on the other offender does not become wholly irrelevant; it remains a factor which ought to be taken into account in the imposition of the instant sentence in question.[28]

46 In the present case, there are important differences between, on the one hand, the offending of the applicant, and, on the other hand, the offending of both Turner and Borg. The offence to which the latter pleaded guilty was a lesser offence, of trafficking in a commercial quantity of a prohibited substance. As such, the amount trafficked by each of them was less than one kilogram, that is, at least one third of the amount trafficked by the applicant. More importantly, both Turner and Borg were a significant step lower, in the hierarchy of the drug trafficking enterprise, of which the applicant was the principal. As I have already stated, as a principal in the enterprise, the applicant was responsible for bringing into Victoria large quantities of methylamphetamine, and in organising and supervising the dissemination of those products through 'intermediaries', such as Borg and Turner. Certainly, Borg and Turner were not street traffickers, but they were, themselves, wholesalers to those who trafficked the drug at the street level. Nevertheless, their roles were lower in the hierarchy of the relevant enterprise, and their functions could not, in any sense, be compared to those of the applicant.

47 In addition, the personal circumstances of Turner and Borg were different to those of the applicant. Both Turner and Borg were heavy drug users. Turner was described by the sentencing judge as a heavy user, whose addiction to methylamphetamine, at the time of offending, was 'out of control'. The sentencing judge described Borg as an addict. By contrast, by the time he became engaged in the offending, the applicant was a 'sporadic social user' of the substance. Further, and no doubt closely associated with their respective addictions, both Turner and Borg suffered from major depressive illnesses. The psychologist's diagnosis of Turner was that he suffered clinical depression, scoring in the extreme level of the Beck Depression Inventory. Borg was diagnosed by the psychologist, who assessed him, as suffering from a major depressive disorder, resulting from his separation from his partner and children, and from his heavy drug addiction. In each case, the judge noted that, as a result of the condition of both Turner and Borg, a sentence of imprisonment would be a more onerous burden.

48 Notwithstanding those differences, and with due respect to the sentencing judge in question, I regard the sentences imposed on both Turner and Borg as being particularly lenient. As I have indicated, their sentences are, nevertheless, relevant factors to take into account in determining whether the principles of parity, or consistency, have been sufficiently complied with in respect to the applicant's sentence. In my view, taking into account the significant differences between the offending, and circumstances, of the applicant on the one hand, and the offending, and circumstances, of Borg and Turner on the other hand, I do not consider that the sentence imposed on the applicant, in respect of count 1, is manifestly disparate with the sentences imposed on Borg and Turner. Accordingly, I reject ground 3 of the grounds of appeal.

49 For those reasons, I would refuse the application for leave to appeal.

[1] [2012] VSCA 140, [20]-[22].

[13] Ibid, [64] (Redlich JA and Curtain AJA).

[14] Paragraph [13] above.

[15] R v Abbott [2007] VSCA 32, [13]-[14] (Maxwell P).

[17] Ibid, 617 [29]-[32] (Ashley, Redlich and Harper JJA) (citations omitted). See also Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535 [48]; Hasan v The Queen (2010) 31 VR 28, 38-41 [44]-[53] (Maxwell, Redlich and Harper JJA).

[22] Cf Mill v The Queen (1988) 166 CLR 59, 62ff.

[23] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).

[24] Farrugia v The Queen [2011] VSCA 24, [15]-[19] (Redlich and Bongiorno JJA).

[26] Kelly v The Queen [2011] VSCA 10, [7] (Redlich and Weinberg JJA).

[27] Fletcher v The Queen [2011] VSCA 4, [31]-[32]; Farrugia v The Queen [2011] VSCA 24, [31].

Poisons and Controlled Substances Act 1981

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