Sentencing Act 1991, ss 5(1), (2); Drugs, Poisons and Controlled Substances Act 1981, ss 71, 71AA, 73, sch 11 pt 3; Crimes Act 1958, s 194(2).

Gregory (a Pseudonym) v The Queen (2017) 268 A Crim R 1; [2017] VSCA 151; Quah v The Queen (2021) 290 A Crim R 136; [2016] VSCA 198; R v Pham (2015) 256 CLR 550; [2015] HCA 39, considered.

1. On 27 October 2022, the respondent pleaded guilty in the County Court of Victoria to four charges relating to drug trafficking in a large commercial quantity[1] ('LCQ') (charge 1) and a commercial quantity[2] ('CQ') (charge 2), possession of a drug of dependence[3] (charge 3), and knowingly dealing with proceeds of crime[4] (charge 4).
2. On 15 November 2022, the respondent was sentenced to a total effective sentence of 16 years' imprisonment, with a non‑parole period of 11 years, as follows:

• Trafficking in a drug of dependence - large commercial quantity

• Trafficking in a drug of dependence - commercial quantity

• 18 years' imprisonment, with a non‑parole period of 13 years

1. Sentenced as serious drug offender in respect of charge 2, pursuant to s 6F of the Sentencing Act 1991.
2. Declared that the offender is a serious drug offender pursuant to s 89DI of the Sentencing Act 1991.

1. Charge 1 was a rolled‑up charge relating to very large quantities of three different drugs seized from the respondent's apartment and/or his motor vehicle:

(a) 59.52kg of methamphetamine;

(b) 33.16kg of cocaine; and

(c) 3.7kg of MDMA.

1. The quantity of each drug was a large commercial quantity ('LCQ') under the Drugs, Poisons and Controlled Substances Act 1981. The amounts were many times higher than the LCQ (mixture of substance and drug of dependence) thresholds set out in sch 11 of that Act, as shown in the following table:

1. Charge 2 related to 4.01kg of 1,4‑butanediol located in the spare bedroom of the respondent's apartment. The amount seized was twice the threshold of the commercial quantity of 2.0kg for mixture of substance and drug of dependence.[6]
2. Charge 3 related to 44.4g of cannabis located in the kitchen and the spare bedroom of the apartment.
3. Charge 4 concerned $1,585,985 in cash found in the apartment.
4. By Notice of Appeal dated 13 December 2022, the Director of Public Prosecutions appeals against the sentences, contending that the individual sentences on each of charges 1 and 2, the orders for cumulation and the total effective sentence and non‑parole period are manifestly inadequate.
5. For the reasons that follow, the Director has made good the contention that the sentence of 12 years' imprisonment on charge 1 and the total effective sentence imposed are manifestly inadequate. We would allow the appeal and resentence the respondent to 16 years' imprisonment on ground 1. We would modify the period of cumulation for charge 2, resulting in a total effective sentence of 18 years' imprisonment. The non‑parole period will be 11 years and six months.

1. At the time of offending, the respondent was 32 years old. He was an unemployed electrician, residing alone in an apartment in Moonee Ponds. He had a significant drug habit.
2. In the afternoon of 13 January 2021, detectives from the drug task force executed a search warrant at the respondent's home address. No one was present at the time.
3. Detectives found $473,015 in cash in the respondent's bedroom. There was a cash counter on the floor, surrounded by elastic bands and loose cash. Detectives found significant quantities of drugs of dependence in the spare bedroom, along with $1,061,745 in cash. Further cash and drugs were found in the kitchen.
4. Shortly after 6pm on the same day, police intercepted the respondent driving his black Nissan Navara. A search of the vehicle located a very large quantity of drugs and more cash.
5. Following his arrest, the respondent made a 'no comment' interview but provided his phone number and a sample of his DNA to the police.
6. CCTV footage from the morning of 13 January 2021 showed the respondent leaving his apartment carrying two heavy duffel style bags. The mapping on the respondent's phone was consistent with him travelling directly from Moonee Ponds to the Rutherglen area, with short stops for food and fuel. The mapping on his phone after leaving the Rutherglen area was consistent with him returning in the same manner. He travelled via Glenrowan, where he was captured on CCTV at a service station and restaurant. The respondent was alone in the vehicle on each occasion.
7. It was the Crown case that the respondent facilitated the transfer of drugs and money for other unknown persons. In that role, he 'warehoused' the drugs and acted as a delivery driver. As was apparent from the large amount of cash seized from his apartment ($1,585,985), the respondent also played an instrumental role in the collection and distribution of the money derived from the sale of and/or used for the purchase of the drugs that he trafficked.
8. It was the Crown case that the bags that the respondent was seen to have left with on the morning of 13 January 2021 likely contained the money used for the purchase of the drugs later found in his car.
9. The respondent was charged with offending on a single date (13 January 2021). It was not alleged that any of the objects located in his apartment, including a pill press, constituted evidence of previous trafficking.
10. The Crown acknowledged that save for the purchase of a jet ski and the fact that the respondent had no visible means of support, there was no evidence of enrichment. Further, the respondent had not taken any steps to conceal his identity. The apartment was leased in his name and his car and phone were registered to him.
11. Moreover, save that the circumstances of the offending clearly indicated that the respondent knew he was dealing in quantities of drugs that were many times above the threshold for a large commercial quantity, the Crown did not allege the respondent knew the precise quantity of the drugs found in his motor vehicle.
12. The respondent had no prior convictions or matters pending at the time of his arrest.

1. On the plea, the respondent relied on a report by psychologist, Patrick Newton.[7] The respondent's personal circumstances are set out in that report, as reported to Mr Newton by the respondent.
2. The respondent grew up in an unremarkable but apparently loving and supportive family. He is the fourth of six children, having three older sisters and a younger sister and younger brother. He grew up in Melton where his father worked as a chef and his mother worked as a kitchenhand and waitress. His parents' relationship was free from serious conflict and discipline within his family was consistent and fair. The respondent's drug use caused some difficulties in his relationship with his parents over the years, but they are now his 'biggest supporters'. He remains on good terms with them and his siblings.
3. The respondent's education was also generally unremarkable. However, he reported that from year 11, he had become increasingly disengaged from his schooling and was 'asked to leave' the school due to 'wagging and causing dramas'. He commenced, but did not complete, a plumbing apprenticeship, failing his first exam and not sitting any more due to low confidence and motivation. He continued to work in plumbing roles for a couple of years, before losing his job due to being intoxicated at work. The respondent commenced an electrical apprenticeship, but again did not complete it as a result of failing his exams and losing confidence and motivation.
4. The respondent entered into a significant relationship with Amy when he was 21, which lasted for nine years. The relationship was positive and the couple bought a house together. However, his increasing substance use (described below) resulted in the demise of the relationship.
5. The respondent has a history of substance use commencing around the age of 16, when he started drinking and smoking cannabis. From the ages of 18 to 21, he used cannabis daily at relatively high levels, and began using a range of other substances, including MDMA and speed. He also used benzodiazepines (chiefly Valium) during this period to combat the agitation and hyperarousal caused by his use of stimulants. He was abstinent from all illicit drugs for a period of several years after he met Amy, who was strongly opposed to illicit drug use. However, he relapsed to drug use at the age of 26 following the death of a friend.
6. After his relationship ended, the respondent engaged in particularly heavy use of cocaine and other drugs. Using cocaine became part of his daily activities. He was soon using the drug throughout the day, 'topping up' at the first sign of withdrawal and remaining awake for extended periods before taking Xanax to induce sleep. As this pattern of use continued, he became less and less capable of maintaining employment or engaging in other activities in mainstream society. He became steadily more and more immersed in the drug‑using and criminal subcultures, relying upon them for the supply of drugs and internalising their mores. The respondent's drug use continued in this fashion until his arrest.
7. The respondent told Mr Newton that his offending occurred in the context of his drug addiction. He said that he had carried out the offending in order to fund his own addiction.
8. Mr Newton found the respondent to be 'an emotionally sensitive man who is prone to [experiencing] relatively intense feelings of grief and anxiety at times of loss', but stated that he was 'not manifesting any significant anxiety‑related symptoms' at the time of assessment. Mr Newton opined that the respondent would not meet the criteria for any psychological disorder at the time of assessment, or in the past. However, should the respondent be sentenced to a period in custody, like any individual with a serious addiction, the risk of relapse would be increased in any period immediately following his eventual release from custody.

1. The judge set out the circumstances of the offending, referring to the quantities of drugs and cash seized, including the extent to which those quantities exceeded the thresholds for LCQ trafficking. His Honour concluded that the respondent's offending represented 'very serious breaches of serious laws'.[9]
2. The judge described the respondent's role as facilitating the transfer of the drugs and money to or from unknown persons, and observed that the prosecution accepted that there were likely others involved.[10] While it was not known precisely where the respondent sat in the hierarchy of the operation, the judge inferred that the respondent was 'a trusted participant',[11] given the quantity of drugs and money in his possession, which he was obviously handling and in charge of. The judge concluded that the respondent's role in the operation was 'a vital and important one'.[12]
3. The judge noted that the trafficking of a drug of dependence in a large commercial quantity was a 'serious drug offence' (as defined), and that the respondent stood to be sentenced as a serious drug offender within the meaning of that term in Part 2A of the Sentencing Act 1991.[13] As a result, the court had to regard the protection of the community as the principal purpose for which the sentence would be imposed.[14]
4. The judge also had regard to the standard sentence of 16 years for the LCQ trafficking offences and described in uncontroversial terms how the standard sentence was to be applied.[15]
5. After setting out the circumstances of the offending, the judge outlined the respondent's personal circumstances and described the respondent's history of very significant drug use, which included the use of cannabis, MDMA, and cocaine.[16]
6. In relation to mitigating factors, the judge took into account to the plea of guilty which, while not made early in the proceeding, had considerable utilitarian value in that witnesses were not required to give evidence at trial, and court resources were not wasted.[17]
7. The judge recognised that the respondent had a supportive and stable family, which could assist his rehabilitation,[18] and referred to the number of character references tendered at the plea attesting to the respondent's work ethic and good character. Each of the referees professed shock at learning about the respondent's offending, arrest and remand.[19]
8. The judge accepted that the respondent's time in custody during the COVID pandemic had been far more onerous than it would otherwise have been.[20] The respondent had spent 14 days in isolation in prison as a result of being moved from one place to another. He had been locked down for 24 hours per day on 87 separate occasions. On 53 days, he was allowed only one or two hours of exercise outside of his cell. The judge recognised these as severe restrictions that likely made the respondent's time in prison far more difficult than normal.[21]
9. The judge took note of the respondent's pro‑social activities while in custody. The respondent had participated in a number of drug and alcohol courses, and courses involving engineering and cleaning operations.[22] He worked in waste management at the prison and had obtained a fork‑lift licence.[23] He worked in what were considered to be trusted positions and had been involved in assisting other prisoners with a variety of problems, including new prisoners in need of help adjusting to prison life. The respondent was to be commended for that.[24] Furthermore, drug screens conducted in custody showed that the respondent had tested negative to illicit drugs.[25]
10. While the respondent's counsel had described some aspects of his offending as 'unsophisticated' - keeping his car registration, apartment and telephone in his own name - the judge was not persuaded that lack of judgement was a mitigating factor in sentencing.[26]
11. As to prospects of rehabilitation, the judge accepted that the respondent was a person of average intelligence, that he would likely continue to enjoy the support of his family, and that his employment record had been good until he relapsed into serious illicit drug abuse after the age of 26.[27] The judge considered the respondent to have reasonable prospects for rehabilitation if he could avoid relapsing into drug use.[28] His Honour concluded that the respondent's rehabilitation prospects were 'guarded'.[29]
12. The judge considered the applicable sentencing purposes in this case to be punishment, deterrence, denunciation, and protection of the community.[30] His Honour had regard to the maximum penalty prescribed for the offences, current sentencing practices, the nature and gravity of the offending, the offender's culpability and degree of responsibility for the offences, whether there was a plea of guilty (and if so, when), the offender's previous character, and any other aggravating or mitigating factors.[31]
13. In relation to current sentencing practices, the judge said:[32]

With regard to the issue of current sentencing practices that I am required to consider, your counsel provided me with a number of decisions, which it was submitted were relatively current and relevant to any sentence that may be imposed upon you. Sentences imposed in each of those matters depended, of course, largely on their own facts and circumstances, as will your sentence. I was also referred to a document entitled 'Sentencing Snapshots' which relates to the offence of trafficking in a large commercial quantity of drugs. This document shows that the term of imprisonment imposed for this offence since the commencement of the standard sentence scheme is more often than not a substantial term of imprisonment. I note that these figures, of course, take no account of the differing circumstances of the offending conduct, and the differing personal circumstances of the offender, or of the presence of, or lack of, any criminal record, prior convictions, for want of a better expression of the offender.

1. The sentencing snapshot referred to in this passage - 'Sentencing Snapshot No 269'[33] - is relevant to the submissions made regarding the inadequacy of the sentence and, in particular, the Court's residual discretion in the event the ground of manifest inadequacy is upheld.

1. The Director appeals on the single ground that the individual sentences on each of charges 1 and 2, the orders for cumulation, and the total effective sentence and non‑parole period are manifestly inadequate.
2. According to the Director, the respondent's sentence is manifestly inadequate having regard to a number of factors, the first and foremost being the huge quantity of drugs that were seized.
3. Secondly, the amount of cash seized was significant, being over $1.5 million.
4. Thirdly, the criminal enterprise was 'not unsophisticated'. While the respondent submitted on the plea that his offending was relatively unsophisticated, he accepted that he was couriering and warehousing significant amounts of drugs and cash. While the sentencing judge was not able to know the respondent's precise position in the hierarchy of the operation, he properly inferred that the respondent was a 'trusted participant' given the 'significant cash transactions involving significant drugs'. The sentencing judge found that the respondent had a 'vital and important' role in the criminal operation, supported by evidence of him travelling to and from New South Wales, demonstrating the trust placed in him to transport and care for the substantial amounts of illicit drugs.
5. Fourthly, there was agreed evidence about some enrichment on the part of the respondent, being the purchase of a jet ski.
6. Fifthly, the standard sentence of 16 years[34] for the offence of trafficking in a drug of dependence in large commercial quantity is a guidepost for the exercise of the sentencing discretion. It shows Parliament's intention about the extent of punishment attracted by offences involving large‑scale drug trafficking.[35]
7. The Director relied on the case of Gregory (a pseudonym) v The Queen,[36] in which this Court (Maxwell P, Redlich and Beach JJA) dismissed an appeal against sentence for a charge of trafficking in a commercial quantity of methylamphetamine. In so doing, the Court made the following observations about sentencing for trafficking offences:

As this Court has pointed out repeatedly, the sentencing regime for trafficking offences is quantity‑based. That is, the legislature has fixed the maximum penalties by reference to specified quantitative thresholds - commercial quantity (CQ) and large commercial quantity (LCQ) - with the applicable quantities for each drug of dependence specified separately.[37]

It follows ... that 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. There are, of course, other important indicators of offence seriousness - in particular, the offender's role in the trafficking, the duration of the offending and the motivation for the offender's involvement.[38]

1. The Court in Gregory also stated that the sentences imposed for LCQ drug trafficking would need to increase substantially compared with CQ trafficking 'in order to maintain appropriate sentencing relativities'.[39]
2. Relying on these statements of principle, the Director submitted that the sentence on charge 1 could not be justified given the objective gravity of the offending. As further support for this contention, the Director relied upon this Court's remarks in Quah v The Queen,[40] that '[o]ther things being equal, an offence of LCQ trafficking is more serious than an offence of CQ trafficking, because it falls into the highest quantitative category and carries the highest maximum'[41] and therefore, the 'differential in offence gravity needs to be reflected in sentencing for LCQ trafficking, if Parliament's clear intention is to be effectuated'.[42]
3. Additionally, to situate the relative seriousness of the respondent's offending, the Director referred to a number of sentences for LCQ trafficking offences, where the trafficking was in far smaller quantities than in the present case. In particular, the Director cited:

(a) Bruce v The Queen[43] - 12 years' imprisonment on a LCQ trafficking charge. The applicant possessed 4.8 times the LCQ threshold for methylamphetamine;

(b) Al Janabe v The Queen[44] - 10 years' imprisonment on a LCQ trafficking charge. The applicant possessed 12 times the LCQ threshold for methylamphetamine;

(c) DPP v Kumas[45] - 10 years' imprisonment on a LCQ trafficking charge. The respondent possessed 1.92 times the LCQ threshold for the combined weight of methylamphetamine and cocaine;

(d) Quah v The Queen[46] - 15 years' imprisonment on a LCQ trafficking charge. The applicant possessed 3.8 times the LCQ threshold for methylamphetamine; and

(e) Rahmani v The Queen[47] - 9 years' imprisonment on a LCQ trafficking charge. The applicant possessed 1.5 times the LCQ (pure weight) and 1.3 LCQ (mixed weight) threshold for methylamphetamine.

1. The Director submitted that while the respondent had no prior criminal history, this Court has previously considered that past good character is of lesser weight in sentencing for large scale drug trafficking offences. In weighing up the balance of factors in this matter, just punishment, community protection and general deterrence were significant sentencing considerations. The objective gravity of the offending was high, and the matters called in aid of mitigation could not make up for the extremely large quantity of drugs and cash involved.
2. According to the Director, the sentence imposed on charge 1 cannot be justified, given the objective gravity of the offence and what was said by the Court of Appeal in Gregory about the need for increased sentences for upper‑level commercial quantity trafficking and the consequent need for higher sentences for LCQ trafficking.

1. The respondent acknowledges that his offending was very serious, having regard to the quantities of drugs and money involved. He submits, however, that the judge had specific regard to each of the factors raised by the Director as requiring a longer term of imprisonment.
2. According to the respondent, the judge specifically referred to the significant quantities of drugs trafficked and set out the multiples of the thresholds for commercial and large commercial quantities that those quantities represented. The fact that the charges involved four different types of drugs was not lost on the judge. His Honour also made numerous references to the amount of money found by police and, in any event, no complaint is made about the individual sentence of five years' imprisonment imposed on charge 4. Furthermore, the judge made repeated references to the standard sentence applicable for charge 1 and it is not suggested that the judge fell into any error in his analysis of the principles involved when sentencing for a standard sentence offence. The judge was also required to have regard to totality.
3. The respondent points out that the prosecutor made concessions on the plea regarding the respondent's offending, including that it was confined to a day, that the other items found at his apartment could not be seen as evidence of other trafficking, that he did not know the precise quantities of the drugs involved, and that there was no evidence of enrichment except for the purchase of a jet ski.
4. The respondent also submits that the plea appeared to proceed on the agreed basis that the respondent had a subordinate role in the operation. It is not suggested that the judge fell into any error in his analysis of the respondent's role in the offending.
5. The respondent points to the many matters in mitigation and submits that the sentencing judge was entitled to have regard to them, notwithstanding the seriousness of the offending. Furthermore, the judge was required to have regard to current sentencing practices as one of a multitude of relevant sentencing considerations. In this context, the respondent pointed to the tender of the 'snapshot' and the discussion surrounding it.
6. As to the Director's submission that the respondent's prior good character ought to be given less weight, the respondent submits that this point was not raised by the prosecutor on the plea and the Director ought not to be permitted to raise it now. The respondent also took exception to the Director's submission that the offending was 'not unsophisticated'. Again, no submission about the sophistication of the offending was made by the prosecutor on the plea.
7. As to charge 2 specifically, the respondent submits that beyond the mere reference to the fact that 4.01kg of 1,4‑butanediol was seized by the police, the Director did not refer to any matters of principle relating to trafficking in 1,4‑butanediol, or to any comparable cases or sentencing practices in respect of such drug trafficking. If such an exercise were to be engaged in, it would be readily apparent that the sentence imposed on charge 2 was within the range available.
8. In relation to cumulation, the respondent submitted that it is unclear why orders having the effect that 50 per cent of the sentence imposed on charge 2 and 40 per cent of the sentence imposed on charge 4 be served cumulatively on charge 1 were not reasonably open. The prosecutor did not make submissions as to cumulation or concurrency and appeared to accept that the fact that the offending involved in charges 1 and 2 occurred simultaneously was a relevant consideration for cumulation and/or concurrency.[48]

1. In this appeal, the Director advances the single ground that the individual sentences on charges 1 and 2, the orders for cumulation, the total effective sentence and the non‑parole period are manifestly inadequate.
2. The Director makes no complaint about the individual sentences on charges 3 and 4. In fact, as the respondent submitted, no specific complaint is made about the sentence on charge 2 either. The Director's submissions are directed to the sentence on charge 1 and the total effective sentence imposed.
3. It is well‑established that where a ground of appeal alleges manifest inadequacy, this Court will be astute to apply a stringent test and the ground of appeal should be difficult to make good.[49] Appellate intervention will only be justified where the sentence imposed can be demonstrated to be wholly outside the permissible range of sentences open to the sentencing judge.[50]
4. In this case, we agree with the Director that the sentence on charge 1 of 12 years' imprisonment is manifestly inadequate having regard to the eye‑wateringly large quantity of drugs involved. The quantity of methamphetamine alone is 79 times more than the threshold for a large commercial quantity. The quantity of cocaine exceeds the LCQ threshold by a factor of 33. Despite the charges being limited to conduct on one day, this is trafficking on a significant scale. None of the LCQ cases to which the Court was referred involved amounts even approaching these quantities.
5. In so holding, we are cognisant that, while nearly always important, the quantity of drugs involved is only one of the factors that bears on sentencing. The judgments in R v Pham explained:

[T]o treat the weight of the narcotic as the chief factor in fixing sentence, without taking into account the many conflicting and contradictory elements which bear upon sentencing an offender, represents a departure from fundamental sentencing principle.[51]

It is well settled that the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness of an importation offence (or other drug offence). The quantity of the drug imported (or trafficked or possessed) will usually be relevant to assessment of the seriousness of the offence. In some cases it will be the most significant consideration in this regard and in other cases it may be of little moment.[52]

1. In this case, the quantity of the drugs the subject of charge 1 is a most important consideration in sentencing. The sheer quantity of the drugs trafficked by the respondent makes the offending objectively very serious indeed, as the judge recognised. Although the respondent can call upon a number of mitigating factors - most especially his guilty plea to each charge - they are not individually or in combination so weighty or compelling as to justify a term of imprisonment on charge 1 that is significantly below the standard sentence for LCQ trafficking.
2. There is no challenge to the way in which the judge described the role of the respondent in the trafficking operation in question. He was a 'trusted participant' whose role was 'a vital and important one'. The legislature has made it plain that LCQ trafficking must attract a significant term of imprisonment, and that the penalties must be noticeably more severe than those for trafficking in commercial quantities. General deterrence is a particularly important sentencing consideration in light of the pernicious effects of the drugs in question on individuals and the community more generally.
3. Given the standard sentence of 16 years' imprisonment for LCQ trafficking, and having regard to the seriousness of the offending in this case, 12 years' imprisonment is outside the range of available sentences, notwithstanding the respondent's guilty plea and the other factors raised in mitigation.

1. The respondent submits that even if the sentence on charge 1 is held to be manifestly inadequate, this is an appropriate case for the exercise of the Court's residual discretion not to interfere with the sentence imposed by the judge.
2. This submission was largely based on the way in which the prosecutor conducted the plea. According to the respondent, the prosecutor did not provide the judge with any cases said to be comparable or make any submissions regarding the comparative seriousness of the offending involved in charge 1. When the judge presented the prosecutor with a sentencing range of between seven and 13 years, the prosecutor did not make any submission that it was not reasonably open to impose a sentence on charge 1 that fell within that range.
3. Moreover, the respondent submits, upon sentencing, the judge provided the prosecutor the rare opportunity to make submissions about the proposed sentence of 12 years' imprisonment that his Honour was intending to impose on charge 1. He submits that where the proposed sentence is outside the range of sentences available and the prosecution had an opportunity to make submissions about an intended sentence but did not take the opportunity, the Court should exercise its discretion not to impose a higher sentence.
4. This last point is without merit. In the exchange referred to, the judge had already pronounced the sentence of 12 years' imprisonment on charge 1. His Honour had also pronounced the sentences on charges 2, 3 and 4. When the judge then proceeded to declare that he had sentenced the respondent on charges 1 and 2 on the basis that the respondent was a 'serious drug offender' as defined, counsel drew to his Honour's attention that the respondent only stood to be sentenced as a serious drug offender on charge 2. In response to counsel explaining the application of the definition of 'serious drug offender' in s 6B(2) of the Sentencing Act 1991, the judge said:

Well, Charge 1 of course is the principal offence here. But Charge 2 links up with Charge 1 in that I have, at least in my sentencing remarks just uttered, indicated that there will be a period of concurrency between the two.

If I am - what do you submit, having fixed a base sentence of 12 years imprisonment in relation to Charge 1, involving three separate drugs, each in quantity in excess of the large commercial quantity threshold, as defined, what do you submit about that sentence[?]

1. The prosecutor responded that while the judge had not imposed a disproportionate sentence on charge 2, it was relevant that it was only in respect of charge 2 that the respondent could be sentenced as a serious drug offender for the purposes of pt 2A of the Sentencing Act 1991.
2. The judge in turn responded:

Well, the situation here is, and I paid close attention to the sentences that had been imposed in a number of the matters to which I was referred, and to the sentencing snapshot for that particular offence, a large commercial quantity in relation to Charge 1. And it seemed to me that the standard sentence of 16 years was too high, but in all the circumstances 12 years was about right. And I must say that I am not inclined, if I am separating it, and even if my declaration at the end is simply limited to Charge 2, I do not think will have the slightest effect on my sentence in respect of Charge 1.

1. The prosecutor then confirmed that he was not making any submission 'in terms of numbers, or quantum'.
2. That, in our view, was a perfectly appropriate response in the circumstances. The sentences having been pronounced, the fact that the prosecutor did not say that 12 years' imprisonment on charge 1 was outside the range of permissible sentences is unexceptional and does not call for the exercise of the residual discretion on appeal.
3. As to the judge earlier identifying the sentencing range from the Sentencing Snapshot, the relevant exchange is as follows:

HIS HONOUR: What parts of [the Sentencing Snapshot] did you consider or submit were in particular relevance or of particular relevance?

PROSECUTOR: Your Honour - yes, Your Honour. If Your Honour looks at - and the advantage of this particular document is that it does differentiate between standard sentence offences and other so that it does provide some assistance. But of course, there's not a detail in it but Your Honour would see particularly figures 6 and 7 do provide a breakdown - - -

HIS HONOUR: Yes.

PROSECUTOR: - - - for what it is worth - - -

HIS HONOUR: Yes.

PROSECUTOR: - - - of the sentences which have been imposed for trafficking in a large commercial quantity of drugs.

HIS HONOUR: Well, the way I would read that is that the bulk of such sentences would be between seven and 13 years. Figure 6.

PROSECUTOR: Figure 6. Yes.

HIS HONOUR: I mean there's different ways you might address it but they seem to be as a bundle - - -

PROSECUTOR: Yes, Your Honour.

HIS HONOUR: - - - about what it is - were you seeking to persuade me otherwise because I'm open to suggestions.

PROSECUTOR: No, Your Honour. This is - no, Your Honour. This is provided to assist the court.

HIS HONOUR: Yes.

1. The respondent submits that the prosecutor failed to tell the judge that he would fall into error if he imposed a sentence on charge 1 that fell within the range of seven and 13 years and that this 'failure' enlivens the residual discretion.
2. In our view, the prosecutor did no more than to provide to the judge, 'for the assistance of the court', statistical information of a kind routinely provided to sentencing judges as part of a plethora of material and information to assist the sentencing synthesis. The judge told the prosecutor in neutral terms one of the things that he thought the Snapshot showed. Most of the cases in the Snapshot fell within the range identified. It was not the prosecutor's job to ensure that the judge gave that information appropriate weight. In particular, the prosecutor was not obliged to remind the judge of the standard sentence for the offence in charge 1, or again stress the objective gravity of the offending.
3. In fact, in his reasons, the judge explained how he used the Snapshot information and current sentencing practices more broadly:

With regard to the issue of current sentencing practices that I am required to consider, your counsel provided me with a number of decisions, which it was submitted were relatively current and relevant to any sentence that may be imposed upon you. Sentences imposed in each of those matters depended, of course, largely on their own facts and circumstances, as will your sentence. I was also referred to a document entitled 'Sentencing Snapshots' which relates to the offence of trafficking in a large commercial quantity of drugs. This document shows that the term of imprisonment imposed for this offence since the commencement of the standard sentence scheme is more often than not a substantial term of imprisonment. I note that these figures, of course, take no account of the differing circumstances of the offending conduct, and the differing personal circumstances of the offender, or of the presence of, or lack of, any criminal record, prior convictions, for want of a better expression of the offender.[53]

1. The judge thereby indicated that, as he was bound to do, he would take into account the particular circumstances of the offending conduct and the other factors relevant to the sentencing synthesis in this case. It cannot be said that his Honour was led astray by the prosecution.
2. Again, we do not intend to exercise the residual discretion on the basis contended for by the respondent.

1. As discussed, the sentence on charge 1 must clearly reflect the objective gravity of the LCQ offending. As the judge held, the offending in charge 1 is a serious example of serious offending. It is well above the 'mid‑range' for offending of this kind given the quantities of drugs involved. The respondent did not merely 'chance' upon those quantities of the drugs: he was clearly a trusted operative in a large‑scale drug trafficking operation. Having regard to the objective gravity of the offending and the important sentencing purpose of general deterrence, balanced against the mitigating factors identified, we have concluded that a sentence of 16 years' imprisonment should be imposed on charge 1. The sentence of 16 years' imprisonment reflects the fact that the seriousness of the offending the subject of charge 1 is well above the middle of the range of seriousness for offending of that kind,[54] balanced against the mitigating factors here at play, notably the respondent's guilty plea and his clean police record.
2. We do not propose to impose any different sentences on charges 2, 3 and 4. However, the sentence on charge 2 of four years' imprisonment will be ordered to be served wholly concurrently with the sentence on charge 1, in light of the fact that the charge 2 offending was, in practice, part of the same instance of offending as charge 1.
3. There will continue to be a period of two years' cumulation on the sentence of five years' imprisonment on the charge of knowingly dealing with the proceeds of crime (charge 4).
4. The total effective sentence will therefore be 18 years' imprisonment. The non‑parole period will be set at 11 years' and six months. In setting a long non‑parole period, we have had regard to the respondent's prospects of rehabilitation, which we consider to be reasonable if he is able to avoid relapsing into drug abuse.
5. It will be declared under s 6AAA of the Sentencing Act 1991 that had the respondent not pleaded guilty to the charges, we would have imposed a total effective sentence of 20 years' imprisonment, with a non‑parole period of 14 years.

[1] Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 71.

[2] Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 71AA.

[3] Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 73.

[4] Contrary to Crimes Act 1958, s 194(2).

[5] Drugs, Poisons and Controlled Substances Act 1981, sch 11 pt 3, Column 1B (Large Commercial Quantity).

[6] Drugs, Poisons and Controlled Substances Act 1981, sch 11 pt 3, Column 2A (Commercial Quantity).

[8] DPP v Christie (Unreported, County Court of Victoria, Judge Smith, 15 November 2022) [1]-[10] ('Reasons').

[33] Sentencing Advisory Council, 'Sentencing Snapshot No 269: Trafficking in a Large Commercial Quantity of Drugs' (April 2022).

[34] Drugs, Poisons and Controlled Substances Act 1981, s 71(2).

[35] Citing Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 479 [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286 ('Brown').

[36] (2017) 268 A Crim R 1; [2017] VSCA 151 ('Gregory').

[37] Ibid 7 [23] (citations omitted).

[38] Ibid 8 [24] (citations omitted).

[40] (2021) 290 A Crim R 136; [2016] VSCA 198 ('Quah').

[41] Ibid 151 [56] (Maxwell P and Beach JA).

[43] [2022] VSCA 100, [5] (Maxwell P and Kennedy JA).

[44] [2021] VSCA 252, [24] (Priest and Kennedy JJA).

[45] [2021] VSCA 215, [10] (Maxwell P, T Forrest and Walker JJA) ('Kumas').

[46] Quah, 139 [9] (Maxwell P and Beach JA).

[47] [2021] VSCA 51, [12] (Maxwell P and Niall JA).

[49] DPP (Vic) v Zhuang [2015] VSCA 96; (2015) 250 A Crim R 282, 295-8 [39]-[47] (Redlich, Priest and Beach JJA); [2015] VSCA 96.

[50] DPP v White [2020] VSCA 37; (2020) 60 VR 292, 305-7 [67]-[73] (Maxwell P, Beach and Weinberg JJA); [2020] VSCA 37.

[51] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 562 [36] (French CJ, Keane and Nettle JJ); [2015] HCA 39.

[52] Ibid 564 [45] (Bell and Gageler JJ) (citations omitted).

[54] See Sentencing Act 1991, s 5A(1)(b).