Drugs, Poisons and Controlled Substances Act 1981, ss 71AA(1), 71AC(1), 73(1), 71A(1), 16B(2); Sentencing Act 1991, ss 18X-18ZT.

Gregory (a pseudonym) v The Queen [2017] VSCA 151; Ellis v The Queen [2018] VSCA 221; DPP v Moustafa [2018] VSCA 331; Arici v The Queen [2019] VSCA 228; Roach v The Queen [2020] VSCA 205; Al-Dimachki v The Queen [2021] VSCA 98; Sharbell v The Queen [2018] VSCA 324; Fernando v The Queen [2017] VSCA 208; DPP (Cth) v Maxwell [2013] VSCA 50; Sengul v The King [2023] VSCA 63; Needham v The King [2024] VSCA 270; DPP v Fatho [2019] VSCA 311; DPP v Barton (a pseudonym) [2025] VSCA 202, considered.

DPP v Currie; DPP v Daniels (a pseudonym) [2021] VSCA 272; DPP v Karazisis [2010] VSCA 350; CMB v Attorney-General (NSW) [2015] HCA 9; Cumberland v The Queen [2020] HCA 21; DPP v Lombardo [2022] VSCA 204; DPP v Goldsmid [2023] VSCA 124, applied.

Mr T Kassimatis KC with Ms B Franjic and Mr D Brown.

1. This was a Crown appeal against sentence which we dismissed at the conclusion of the hearing, saying that we would provide our reasons later. The background of the appeal, the issues and the submissions made by the parties are comprehensively set out in the judgment of Walker JA, relieving us of the need to repeat any of those matters. We set out below our reasons for joining in the order dismissing the Director's appeal.
2. As her Honour's reasons disclose, Walker JA agreed in the dismissal of the appeal only in the exercise of this Court's residual discretion. Her Honour concluded that, while the individual sentences imposed on charges 1 to 4 were within range, the orders for cumulation in respect of charges 2, 3 and 4 and the total effective sentence were all manifestly inadequate.
3. We agree with her Honour's conclusions that the individual sentences on charges 1 to 4 have not been shown to be manifestly inadequate, and with her Honours reasoning so far as the exercise of the residual discretion is concerned. The difference between us is that we are not persuaded that, in all of the circumstances of the appellant and his offending, any of the orders for cumulation or the total effective sentence were manifestly inadequate.
4. As has been said many times before, to establish manifest inadequacy in a sentence, the Director must show that the sentence was 'wholly outside the range of sentencing options available to the sentencing judge'.[1] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did if proper weight had been given to all the relevant circumstances of the offending and of the offender. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good.[2]
5. In her careful and detailed reasons for sentence, the sentencing judge gave appropriate consideration to all of the circumstances of the appellant's offending (noting that the charged offending was 'limited to one day')[3] and the personal circumstances of the appellant - noting in particular, the unusual circumstances in which the appellant came to commence his offending, namely:

Up until 2020 and the onset of Covid and its economic impact, you had a strong employment history. You worked in warehousing with your father in Port Melbourne and at other locations. You had also worked in the civil construction industry. Your long term goal is to return to work in this industry and you hold construction tickets and hope to complete further studies in civil construction.

In 2020 the loss of your employment and a deterioration in your relationship led to increased drug use and marks the commencement of your offending as reflected in your criminal history. While your history is certainly relevant and in particular contains three previous appearances for trafficking in drugs, in the main, it doesn't commence until 2021. Prior to that time, your first appearance was at the age of 36 for driving matters and then in 2019 for possessing drugs, for which you were fined.[4]

1. In our view, properly synthesising the relevant circumstances of the offender and the offending in this case discloses that, while each of the individual sentences and orders for cumulation might be regarded as lenient, none of them are outside their respective permissible ranges. Nor was the total effective sentence produced by them outside the permissible range.
2. The judge concluded her reasons for sentence by saying that she intended to impose appropriate individual sentences, and that the principle of totality would 'be reflected in the orders for concurrency/cumulation'. The judge also said that she was required to have 'regard to the total criminality involved and impose a just and appropriate sentence'.[5] In our respectful view, in imposing the sentences her Honour imposed, that is exactly what the judge did. While the orders for cumulation might be regarded as modest, we are not persuaded that any of them were wholly outside the permissible range or that they led to a totally effective sentence which was manifestly inadequate.
3. For these reasons, the appellant failed to persuade us that any of the orders or sentences about which the Director made complaint were manifestly excessive; and, in any event, had it been necessary to consider the residual discretion, we would have exercised it in the respondent's favour. Accordingly, we joined in the order made at the conclusion of the hearing dismissing the Director's appeal.

1. On 26 March 2025, the respondent pleaded guilty in the County Court to various charges of trafficking in drugs, possession of drugs and possession of equipment and substances for the purpose of trafficking. On 1 April 2025, the judge made a Drug and Alcohol Treatment Order ('DATO'), which had two parts:

(a) a treatment and supervision part; and

(b) custodial part, which consists of a sentence of imprisonment.[6]

1. The effect of the DATO was that the sentence of imprisonment would not be served unless the Drug Court (a division of the County Court) makes an order activating some or all of the custodial order.
2. The specific offending, and the sentences imposed, are set out in the table below:

• Traffick commercial quantity of drug of dependence[7]

• Possess equipment and substances for purpose of trafficking in drug of dependence[13]

• Deal with property suspected of being proceeds of crime[17]

• 4 years' imprisonment.
• Drug and Alcohol Treatment Order of 4 years' duration imposed.

• Total Effective Sentence 5 years 10 months.
• Non Parole-Period 3 years 6 months.

• Other Relevant Orders: Forfeiture and disposal orders.

1. The Director of Public Prosecutions now appeals against that sentence on a single ground of appeal:

The individual sentences imposed on charges 1-4, the orders for cumulation made with respect to charges 2-4, and the resulting total effective sentence are manifestly inadequate.

1. On the day of the hearing of the appeal, this Court made an order dismissing the appeal on the basis that we were unanimously satisfied that, even if we were to conclude that the sentence imposed was manifestly inadequate, we would exercise the residual discretion to dismiss the appeal. My reasons for reaching that conclusion are set out later in this judgment.
2. For the reasons that follow, I have concluded that the sentence imposed on the respondent was manifestly inadequate.

1. The statutory provisions governing DATOs are to be found in Sub-division (1C) of Division 2 of Part 3 of the Sentencing Act 1991, namely, ss 18X to 18ZT of that Act.
2. Section 18Y of the Sentencing Act provides that only a Drug Court may make a DATO. 'Drug Court' is relevantly defined in s 3(1) of the Act to mean, in this case, 'the Drug Court Division of ... the County Court'.
3. Section 18ZC(1) provides that a DATO consists of two parts:

(a) 'the treatment and supervision part'; and

(b) 'the custodial part'.

1. Section 18ZC(3) provides that the custodial part of a DATO 'consists of the sentence of imprisonment that the Drug Court must impose on the offender under section 18ZD'.
2. Section 18ZD provides that:

(a) the Drug Court Division of the County Court must impose a sentence of imprisonment of no more than four years;

(b) the sentence must be the sentence of imprisonment that the Drug Court would have imposed if it had not made a DATO; and,

(c) despite anything to the contrary in s 11 of the Sentencing Act, the Drug Court must not fix a non-parole period as part of the sentence it imposes.

1. Section 18Z of the Sentencing Act sets out the circumstances which must exist before a Drug Court may make a DATO. Relevantly for present purposes, those circumstances include:

(a) the Drug Court is satisfied on the balance of probabilities that the offender is dependent on drugs or alcohol, and the offender's dependency contributed to the commission of the offence;[18] and

(b) the Drug Court considers that, otherwise, it would be appropriate to impose (if the proceeding is in the County Court) a sentence of imprisonment of no more than four years;[19] and

(c) the Drug Court has received a DATO assessment report on the offender under s 18ZQ.[20]

1. Finally, s 18X sets out the purposes of a DATO and certain matters regarding rehabilitation to be considered by a Drug Court when considering making a DATO. Specifically, s 18X provides:

(1) The particular purposes of a drug and alcohol treatment order are -

(a) to facilitate the rehabilitation of the offender by providing a judicially-supervised, therapeutically-oriented, integrated drug or alcohol treatment and supervision regime;

(b) to take account of an offender's drug or alcohol dependency;

(c) to reduce the level of criminal activity associated with drug or alcohol dependency;

(d) to reduce the offender's health risks associated with drug or alcohol dependency.

(2) Nothing in subsection (1) affects the operation of section 5(1) but, if considering making a drug and alcohol treatment order, the Drug Court must regard the rehabilitation of the offender and the protection of the community from the offender (achieved through the offender's rehabilitation) as having greater importance than the other purposes set out in section 5(1).

1. On 28 March 2024, police executed a search warrant at the respondent's home. The respondent's co-offender, Sarah McIntosh, also lived at the property. Police had previously conducted a preliminary search of the respondent's phone which had revealed content relating to the trafficking of drugs of dependence.
2. On executing the search warrant, police located:

(a) 8,743 g of 1,4 butanediol, the majority of which was found in 17 500ml bottles in a storage area underneath the house (charge 1: traffick in commercial quantity of drug of dependence);

(b) 114.9 g of methylamphetamine (mixed) (charge 2: traffick in drug of dependence);

(c) 24.9 g of ketamine (mixed) (charge 3: traffick in drug of dependence);

(d) 80.2 g of MDMA (mixed) (charge 4: traffick in drug of dependence);

(e) a small quantity of cannabis (charge 5: possess drug of dependence);

(f) 10.8 g of cocaine (mixed) (charge 6: possess drug of dependence);

(g) $19,210 in cash (related summary offence 29: deal with property suspected of being proceeds of crime);

(h) two extendable batons, two flick knives, and one high-powered laser pointer (related summary offence 16: possess prohibited weapon);

(i) tablets and capsules containing Schedule 4 poisons (related summary offence 27: possess Schedule 4 poison);

(j) various scales, empty capsules, unused clear ziplock bags, and numerous syringes, plungers and bottles.[21]

1. These charges related to trafficking on a single day, although the Crown contended that the respondent had been engaged in an ongoing enterprise.
2. On 10 May 2024, police executed a further search warrant at a storage locker and located items including a packed-down, non-operating clandestine laboratory. Police seized items including:

(a) pseudoephedrine, hypophosphorous acid, glassware and funnels (charge 7: possess equipment and substances for purposes of trafficking);

(b) 185 boxes of Lego and two police Drug Squad boxes (part of related summary offence 29); and

(c) 80 rounds of .22 calibre ammunition (related summary offence 24: possess cartridge ammunition).

1. Analysis of the respondent's mobile phone revealed hundreds of text messages between the respondent and others arranging prices for the sale of drugs, locations to meet to exchange drugs and arranging for samples of drugs.[22]

1. The sentencing judge started by setting out the circumstances of the offending. Her Honour observed that the charges - in particular charge 1 - were serious. She noted that the respondent's offending was limited to a single day, but accepted that the facts demonstrated that his involvement extended beyond a single day, and that this was relevant in relation to his intention on the date of the charge and as context. Her Honour stated that she took these matters into account but was not sentencing the respondent for acts that did not form part of a charge.[23]
2. The judge accepted that the respondent had been actively involved in the organised sale and supply of a variety of drugs. She accepted that there was a lack of some aggravating factors, such as violence. She also accepted that the respondent's addiction had contributed to his offending. But she accepted that the offending was financially motivated. She concluded that his moral culpability was high.[24]
3. Turning to the individual trafficking charges, her Honour said this:

In respect of charge 1, while there are other cases involving greater amounts of 1,4-butanediol, the amount you trafficked was still substantial. The 1,4-butanediol related to charge 1 is 8,743 grams, which is 4.37 x CQ threshold. The prosecution accept that the Court is entitled to take into account that 1,4-butanediol is less profitable than other drugs of dependence and I do so.

The indictment also contains 3 other charges of trafficking in a drug of dependence relating to methylamphetamine, ketamine, 3,4 methylendedioxy-N-methylamphetamine (MDMA). While these charges do not relate to commercial quantities, the amounts discovered were not small.

The methylamphetamine related to charge 2 was 114.9 grams mixed (38.3 x TQ threshold); the Ketamine related to charge 3 was 24.9 grams mixed (8.3 x TQ threshold) and the MDMA related to charge 4 was 80.2 grams mixed (26.7 x TQ threshold).[25]

1. The judge observed that the respondent had pleaded guilty and that this had utilitarian value and reflected an acceptance of responsibility by the respondent.[26]
2. The judge then outlined the respondent's personal circumstances, relevantly including the following:

(a) The respondent had a supportive childhood and continued to have a good relationship with his parents. He had completed VCE without significant issues.[27]

(b) Up until 2020 and the onset of Covid, he had a strong employment history.[28]

(c) In 2020 the respondent lost his employment and his relationship deteriorated. This led to increased drug use and marked the commencement of his offending.[29]

(d) The respondent's criminal history commenced in 2021, and included three previous appearances for trafficking in drugs. Before that, the respondent's first appearance was at the age of 36, for driving matters. Her Honour then observed as follows:

In recent times you have received a variety of dispositions, including imprisonment. You were last released on 13 June 2023 and spent some 6 weeks successfully on parole. The current offending occurred approximately 10 months after your release and in the context of you relapsing into drug use.[30]

(e) The judge then set out the applicant's drug use.[31]

(f) The judge then set out the gist of a report provided by a psychologist, dated 2021, assessing the respondent as suffering from 'Adjustment Disorder with mixed disturbance of emotions and conduct and stimulant and sedative/hypnotic use disorder'.[32]

(g) The applicant has a daughter who is now four years old and lives with the respondent's ex partner. The respondent has a good relationship with the child's mother. He now has a relationship with a co-accused, Ms Zhang, and they used drugs together.[33]

(h) The respondent has accommodation available to him, which has been assessed by the DATC Case Manager as suitable.[34]

1. The judge then turned to matter relevant to the making of a DATO. She said as follows:

Importantly, in considering whether to make such an Order, I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation, as having greater importance than other sentencing purposes such as denunciation and general deterrence. The primacy given to your rehabilitation is significant in your case, given the nature of the offending and the prominence otherwise given to denunciation, specific deterrence and general deterrence.[35]

1. Her Honour then made factual findings relevant to the criteria set out in s 18Z of the Sentencing Act, namely that:

(a) the respondent was dependent on drugs; and

(b) the respondent's dependency contributed to the commission of the offending.[36]

1. The judge then turned to the requirement that, in order to impose a DATO, she must be satisfied that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years. Her Honour noted that this was in dispute between the parties and that the prosecution submitted that a sentence of no more than four years was not open.[37]
2. The judge then turned to current sentencing practice and considered the following cases:[38] Gregory,[39] Ellis,[40] Moustafa,[41] Arici,[42] Roach[43] and Al-Dimachki.[44] Her Honour considered Gregory to be factually different, because it involved trafficking in a commercial quantity of methamphetamine over an 8 month period, associated with violence.[45] In relation to Ellis, the judge observed that the review of sentencing practices for trafficking in a commercial quantity of 1,4 butenediol conducted by the Court in that case had revealed that sentences well below 4 years' imprisonment might be imposed where there are no relevant prior convictions or where there are unusual mitigating features. The Court observed that 'otherwise, the sentences range from 2 and a half years to 5 years imprisonment'.[46]
3. The judge then said this:

Having carefully considered your case and in particular having regard to s.18X(2) of the Sentencing Act, I accept your Counsel's submissions and have determined that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years. To be clear, in coming to that conclusion, I have considered the relevant maximum penalties for the offending for which you have pleaded guilty, the nature and gravity of your offending and your level of culpability, the general sentencing landscape, as relevant to the instinctive synthesis, and the various mitigatory factors present in your case, including your early plea of guilty.[47]

1. The judge then recorded that she was satisfied in all the circumstances that it was appropriate to make a DATO. Her Honour referred to the recommendation by the Case Manager and to the reports from the Drug and Alcohol Treatment Court assessors.[48]
2. The judge then made some remarks about sentencing principles relevant to the custodial part of the DATO. Her Honour said this:

In respect of the sentence I am about to impose I also take into account the principles of proportionality, parsimony and, as already canvassed, totality. I intend on imposing appropriate individual sentences and the principle of totality will be reflected in the orders for concurrency/cumulation. Overall, I must have regard to the total criminality involved and impose a just and appropriate sentence.[49]

1. On the appeal the Director submitted as follows.

(a) The objective gravity of the trafficking charges was very serious. The charge in relation to 1,4 butanediol concerned offending involving trafficking in 4.37 times the commercial quantity, and the amounts in relation to charges 2 to 4, while not commercial quantities, were not small.

(b) Furthermore, the respondent was actively involved in the organised sale and supply of a variety of drugs, as part of an ongoing enterprise. In those circumstances, the 'mere fact that the trafficking charges were committed on a single day was of little significance'.

(c) General deterrence, just punishment, denunciation and protection of the community assumed considerable significance in relation to charge 1.[50]

(d) Specific deterrence was also significant in light of the respondent's three recent prior convictions for trafficking offences, each of which attracted a sentence of imprisonment:

Despite those sentences, the respondent continued to offend by trafficking in drugs. Notably, the respondent committed the present offending only approximately nine months after he had been released from custody in June 2023. Terms of imprisonment of increasing duration since 2021 had not deterred him. He had contravened two community correction orders. Accordingly, specific deterrence had to carry very significant weight. Further, the respondent's criminal history was relevant in assessing his prospects of rehabilitation.

(e) The respondent's moral culpability was high.

(f) The decision of this Court in Gregory, concerning the need for an 'uplift' in sentences for 'upper category' offences of trafficking in a commercial quantity of drugs.[51] It followed that consequential uplifts were required in relation to other categories of offence seriousness, 'in order to maintain relativities'.[52] This uplift applies to trafficking in a commercial quantity of 1,4 butanediol, just as it applies to trafficking in a commercial quantity of other drugs. However, the Director conceded that the lower value of 1,4 butanediol ('where it is established on the balance of probabilities or accepted by the prosecutor') will be relevant to the sentencing exercise (which had occurred in this case).[53]

(g) A review of current sentencing practice (including the review conducted in Ellis and cases decided since Ellis[54]) showed that sentences for trafficking in a commercial quantity of 1,4 butanediol were grouping around three to four years' imprisonment (which is 12 to 16 percent of the maximum penalty), even in cases involving multiples of the commercial quantity with offenders with convictions for trafficking. This suggests that, in those cases:

(i) the maximum penalty for the offence and the need for general and specific deterrence tends to be given inadequate weight;

(ii) the expectation of only a modest financial reward from trafficking in the drug, while relevant as explained in Maxwell, tends to be overweighted; and

(iii) the 'uplift' described in Gregory has had little effect.

(h) The sentence imposed in this case was manifestly inadequate having regard to the gravity of the offending and the need for general and specific deterrence. The sentence was not supported by the current sentencing practice to which the Director referred:

In this case, specific deterrence was a particularly prominent consideration given the respondent's multiple and recent prior convictions for trafficking. Increasing sentences of imprisonment had not deterred him from re-offending by trafficking in multiple drugs of dependence. The respondent received a lesser sentence than the applicant in Ellis (four years' imprisonment), despite the quantity of the drug in Ellis being only 3.5kg, less than half of the amount of the drug trafficked by the respondent. Unlike the respondent, the offender in Ellis had the benefit of relative youth. Further, the respondent's sentence on charge 1 was less than that imposed for the corresponding charge in DPP v Christie, despite the offender in that case trafficking in less than half of the quantity (4.01kg) and having no prior criminal history.

...

The orders for cumulation on charges 2-4 resulted in a total effective sentence which did not reflect the additional criminality involved in those separate acts of possession for sale.

It was not open to impose the individual sentences on charges 1-4, and the orders for cumulation on charges 2-4. Those sentences were manifestly inadequate. A total effective sentence significantly exceeding four years was warranted having regard to all relevant sentencing considerations. Therefore, it was not open to the sentencing judge to consider that a sentence of no more than four years was appropriate and to impose a drug and alcohol treatment order.

1. Finally, the Director accepted that the circumstances of this case fell within one of the 'conventional' reasons for exercising the residual discretion available on a prosecution appeal.
2. In response, the respondent submitted that the sentence and its components were not manifestly inadequate. He submitted that the judge's sentencing remarks were unimpeachable and properly considered all relevant matters. He further submitted that the judge had seen 'an opportunity to break the cycle of addiction and offending' into which the respondent had, relatively recently, fallen, as a mature man. The judge intended to promote the respondent's rehabilitation, where his earlier punishment and incarceration had failed. It was open to her to have done so. Furthermore, protection of the community is advanced by the rehabilitation of an offender.
3. The respondent disputed the applicant's submission that sentencing courts had not given effect to this Court's decision in Gregory and the submission that, even on present current sentencing practice, the sentence on charge 1 was outside the range available. He submitted that a 'wider review of recent decisions' in this Court and in the County Court shows that the sentence imposed on charge 1 is consistent with current sentencing practice.
4. The respondent also submitted that the implications of Gregory for trafficking in a commercial quantity of 1,4 butanediol remains uncertain. He pointed to this Court's decision in Fernando v The Queen, in which Redlich JA observed that:

a recalibration of sentencing practices for the offence of trafficking in a commercial quantity of a drug of dependence must continue to allow for some low- and mid-category offending to receive sentences at the very bottom of the relevant range ... accordingly, sentences imposed for trafficking in a commercial quantity of a drug of dependence in the upper category will be most affected by the uplift, whereas there will be greater flexibility in the range for the middle and lower categories of seriousness. In other words, the uplift will have an increasingly diminished effect as one moves from the upper to the middle and lower categories of seriousness.[55]

1. The respondent also noted that it is necessary to consider the relationship between Gregory and Maxwell, which concerned the relevance of the diminished financial reward for trafficking in 1,4 butanediol. In Fatho the Court held that there was no tension between 'the uplift' called for in Gregory and the holding in Maxwell.[56] Thus, he submitted, whilst Gregory has work to do in cases involving the trafficking of 1,4 butanediol in the upper category of seriousness of the offence, the implications of Maxwell will ordinarily mean that those sentences will be lower than those for comparable offending involving other drugs. And the extent to which Gregory will inform sentences for lower categories of seriousness of the offence is less than clear.
2. The respondent submitted further that, if this Court were to decide that the sentence imposed on him was manifestly inadequate, this Court should exercise the residual discretion and dismiss the appeal. Referring to this Court's decision in DPP v Kenneison,[57] he submitted as follows:

The Respondent has to date complied with the conditions of his Drug and Alcohol Treatment Order and is making good progress. There will have elapsed, by the time his appeal is heard and determined, considerable delay. It is undesirable for the Court to intervene where the sentence first imposed has enhanced his prospects of rehabilitation. It serves neither the Respondent nor the community.

1. In support of that submission the respondent relied on further evidence concerning his compliance with the conditions of the DATO.

1. It is convenient to deal first with the question whether the total effective sentence imposed on the applicant, or any of its components, was manifestly inadequate.
2. It is well established that the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options' available to the sentencing judge. The Director must demonstrate that it was not reasonably open to the sentencing judge to come to the sentencing conclusion he did if proper weight had been given to all the relevant circumstances of the offending and the offender. It is not sufficient that I might have imposed a different sentence.[58]
3. In the present case the Director sought to advance two alternative submissions in support of the proposition that the total effective sentence, the individual sentences and the orders for cumulation were manifestly inadequate.

(a) The first submission was that current sentencing practice for the offence of trafficking in a commercial quantity of 1,4 butanediol has failed to take account of this Court's decision in Gregory, so that sentences for this offending are inappropriately grouped around the 3 to 4 year mark.

(b) The second submission was that, taking into account the relevant sentencing considerations, and in light of current sentencing practice, the sentence was manifestly inadequate.

1. I would accept the Director's second submission, namely that the total effective sentence imposed on the respondent, as the custodial part of the DATO, was manifestly inadequate. In light of that conclusion it is not strictly necessary to deal with the Director's first submission, although I will make some remarks about it later in these reasons.

Consideration of the director's second submission

1. Turning to the second submission, the base sentence in this matter was the sentence imposed in relation to the charge of trafficking in a commercial quantity of 1,4 butanediol . The maximum sentence for that offence is 25 years' imprisonment, reflecting the seriousness of the offending.[59] A significant factor in determining the appropriate sentence in a given case is the quantity of drugs in issue. In this case, the quantity of 1,4 butanediol was 4.37 times the commercial quantity.[60] While not at the highest level of seriousness (noting that some offending may involve hundreds or thousands times the commercial quantity), this was also not at the lowest end. It is properly to be regarded as mid-range offending of this kind, as the Director accepted in oral argument.
2. In the present case the respondent had been involved in an ongoing enterprise involving the sale of drugs. He had relevant and recent convictions for the trafficking. And he had limited factors to call in mitigation, save for one: he had not had any convictions for serious offending until relatively late in life, which could support greater weight being given to treatment and rehabilitation in his case.
3. Current sentencing practice for trafficking in 1,4 butanediol (putting to one side the Director's complaint about clustering), as reflected in this Court's review in Ellis and in the other cases to which the parties referred, suggests that the range of sentences imposed for that offence is between 2 years[61] and 5½ years.[62] The sentences vary, of course, depending on the facts of the particular case, including, in particular, the quantity involved, the offender's criminal history and their other personal circumstances.
4. In Ellis this Court said that a sentence for trafficking in a commercial quantity of 1,4 butanediol 'well below 4 years' imprisonment might be imposed where there are no relevant prior convictions ... or where there are unusual mitigating features'.[63] In the present case the respondent did have relevant prior convictions and did not have significant mitigating features. However, the sentence imposed on him was not properly described as 'well below' 4 years' imprisonment. Furthermore, this Court's remarks in Ellis cannot be understood as laying down rule that fetters the sentencing discretion, as the Director quite properly accepted.
5. In Needham and Sengul, this Court upheld sentences of 3 years for trafficking in a similar quantity of 1,4 butanediol (although Sengul concerned a charge of trafficking simpliciter). In each of those cases the offender had a prior history of trafficking.[64] These cases involved more significant matters in mitigation than available to the respondent; but they also involved lower sentences than the sentence imposed on the respondent. A sentence of 3 years and 3 months was upheld in Roach, in circumstances not dissimilar to the respondent's circumstances, although the Court plainly considered this to be at the very lowest end of the range.[65]
6. Ultimately, after a review of the cases to which the parties referred, I consider that the respondent's base sentence, on charge 1, was within the range of sentences revealed by current sentencing practice. That sentence, while at the very low end of the range, and properly described as lenient, was open to the judge in the exercise of her discretion.
7. For similar reasons, I accept that the individual sentences imposed on charges 2, 3 and 4 were open to the judge in the exercise of her discretion (noting that there was no material before the Court concerning current sentencing practice for the offending the subject of those charges). But these sentences, too, were modest.
8. Of course, discretionary moderation and accumulation of individual sentences is a matter on which reasonable minds may differ without it being possible to conclude that the outcome was not open to the sentencing judge. However, and importantly in the present case, the High Court said as follows in Nguyen v The Queen:

Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.[66]

1. Bearing this in mind, in my view the orders for cumulation for charges 2, 3 and 4 were manifestly inadequate, with the consequence that the total effective sentence was manifestly inadequate.
2. The cumulation for charge 2 was three months, and the cumulation for charges 3 and 4 was 1 month for each. That measure of cumulation failed to reflect the separate criminality involved in that offending. Furthermore, while those charges were not as serious as charge 1, they nonetheless involved serious offending attracting a maximum sentence of 15 years' imprisonment.[67] Even though the offending was on the same day as the offending the subject of charge 1, these charges required greater cumulation than imposed by the judge.
3. The cumulation imposed by the judge is, to my mind, inexplicable, save for the possible inference that her Honour was seeking to ensure that she was able to make a DATO, the eligibility for which requires an offender to be sentenced to a term of imprisonment of four years or less. That inference is supported by the fact that the total effective sentence was precisely four years. Furthermore, the judge interposed her consideration of whether to impose a DATO between her consideration of some of the matters relevant to sentencing and her consideration of current sentencing practice.
4. The Director did not submit that the judge contrived the sentencing outcome in order to impose a DATO; and nor would I make such a finding. However, it is important that judges undertake the exercise of determining the sentence that they would 'otherwise' have imposed,[68] without a pre-disposition to determining a sentence that permits the imposition of a DATO. Practices of that kind have been deprecated by this Court in cases such as DPP v Basic[69] and DPP v Rivette,[70] in relation to the making of a community corrections order. The correct approach can be best achieved by considering first what sentence ought to be imposed for the offending in question by reference to ordinary sentencing principles, including by reference to current sentencing practice. Only once that exercise has been undertaken should the judge turn to consider whether a DATO can and should be imposed.
5. In my view, and bearing in mind the modest sentences imposed for charges 1, 2, 3 and 4:

(a) the cumulation for charge 2 should have been 7 months;

(b) the cumulation for charge 3 should have been 5 months; and

(c) the cumulation for charge 4 should have been 6 months.

1. This would result in a total effective sentence of 4 years and 10 months' imprisonment. In light of that conclusion, it is apparent that a DATO was not an available sentencing option.

Consideration of the director's first submission

1. Finally, it is appropriate to say something about the Director's first submission, concerning what he said is the grouping of sentences for trafficking in a commercial quantity of 1,4 butanediol at around three to four years' imprisonment.
2. That submission was made by reference to 7 cases decided by this Court.[71] The decisions in question were, with one exception,[72] appeals by an offender on the basis that the sentence imposed was manifestly excessive. There was no suggestion that in any of those cases this Court erred in relation to its consideration of the sentence for trafficking in 1,4 butanediol. The sample of cases upon which the Director relied is a small sample. I would not be prepared to conclude, from that sample alone, that sentences imposed for trafficking in a commercial quantity of 1,4 butanediol are clustering in the range of three to four years' imprisonment. Furthermore, in light of the diverse factors that are relevant to the process of instinctive synthesis in determining an appropriate sentence, such clustering as can be observed may do no more than reflect the particular facts of the cases in question.
3. However, it remains the case that sentencing judges are required to give adequate weight to the maximum penalty for the offence and the need for general and specific deterrence. In so doing, sentencing judges should, of course, have regard to what this Court said in Gregory about the need for an 'uplift' in sentencing for drug trafficking at the upper category of seriousness.[73] It may be accepted that this uplift must have some 'flow on effect' in relation to offending that falls in the middle and lower categories. But, as Redlich JA recognised in Fernando, it does not follow that the uplift operates in some linear manner across mid-range and low-range offending. I agree with his Honour that there will be greater flexibility for sentencing judges in those ranges, and in that way 'the "spread of sentences across the statistical range" and "identifiable relativity between offence seriousness" contemplated in Gregory will be achieved'.[74]
4. It may also be the case that the expectation of only a modest financial reward from trafficking in 1,4 butanediol, while relevant as explained in Maxwell,[75] is being overweighted in some cases. But again there is insufficient material for me to conclude that this is routinely the case.

Should this Court exercise the residual discretion?

1. Notwithstanding my conclusion that the total effective sentence imposed on the respondent was manifestly inadequate, this Court retains a residual discretion to dismiss a Director's appeal.[76] Further, the onus rests upon the Director to persuade the Court that the discretion should not be exercised.[77]
2. As has been observed before, the residual discretion is 'perhaps of uncertain width' and it is not possible 'to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case'.[78] However, there are cases that provide guidance as to the circumstances in which the discretion might be exercised. Relevantly for present purposes, these include:

(a) whether an offender given a non-custodial sentence has complied with its terms for a significant period;

(b) whether an offender given a 'lenient disposition' has made productive use of that disposition;

(c) whether the offending involves 'criminality of the highest order';

(d) whether the sentence first imposed is of a type which enhances the prospects of the offender's rehabilitation.[79]

1. On the hearing of the Director's appeal, the respondent sought leave to rely on an affidavit affirmed by his solicitor on 3 September 2025. The Court permitted him to rely upon the affidavit on the issue of whether this Court should exercise the residual discretion.
2. The affidavit exhibits reports demonstrating the respondent's complete compliance with the conditions of his DATO as at 1 July 2025. Somewhat remarkably, the respondent had attended every one of 28 appointments, every one of 40 urine drug screenings and every one of 10 court review hearings. There was no change to this pattern of compliance in a later report produced on 1 September 2025.
3. In light of this material the Director did not seek to submit that the residual discretion should not be exercised. I consider that it was appropriate for this Court to exercise the residual discretion as we did, even though the offending was serious offending. That is because:

(a) the respondent had been given a non-custodial sentence and had complied with its stringent terms for some months; and

(b) the sentence imposed by the judge was clearly designed to enhance the respondent's prospects of rehabilitation.

1. The first matter in particular, suggests that the applicant is on the way to rehabilitation; and that outcome is one that is beneficial for the community as a whole.

1. In the present case the sentence imposed by the judge was manifestly inadequate. I consider that a total effective sentence of 5 years and 1 month's imprisonment would have been an appropriate sentence in which case a DATO could not be imposed.
2. However, because we unanimously considered it was appropriate to exercise the residual discretion, we dismissed the appeal.

[1] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA, with whom Warren CJ and Maxwell P agreed at 637 [1]); [2010] VSCA 350; DPP v Barton (a pseudonym) [2025] VSCA 202, [81] (Priest, Beach and Taylor JJA).

[3] DPP v Mathis (a pseudonym) [2025] VCC 393, [27] (Judge Karapanagiotidis) ('Reasons').

[7] Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[8] Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[9] Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[10] Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[11] Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[12] Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[13] Contrary to s 71A(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[14] Contrary to s 5AA of the Weapons Act 1990.

[15] Contrary to s 124(1) of the Firearms Act 1966.

[16] Contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981.

[17] Contrary to s 195 of the Crimes Act 1958. The Notice of Related Summary Offences refers to s 194(4) of the Crimes Act 1958, which appears to have been an error.

[18] Sentencing Act, s 18Z(1)(c)(i), (ii).

[19] Sentencing Act, s 18Z(1)(d)(ii).

[20] Sentencing Act, s 18Z(1)(e).

[25] Reasons, [30]-[32] (citations omitted).

[39] Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1; [2017] VSCA 151 ('Gregory').

[40] Ellis v The Queen [2018] VSCA 221 ('Ellis').

[41] DPP v Moustafa [2018] VSCA 331 ('Moustafa').

[42] Arici v The Queen [2019] VSCA 228 ('Arici').

[43] Roach v The Queen [2020] VSCA 205 ('Roach').

[44] Al-Dimachki v The Queen [2021] VSCA 98 ('Al-Dimachki').

[45] Reasons, [54]. See Gregory [2017] VSCA 151; (2017) 268 A Crim R 1, 24 [97]-[98] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151.

[46] Reasons, [54]-[55]. See Ellis [2018] VSCA 221, [29] (Whelan and Beach JJA).

[50] Referring to Quah v The Queen [2021] VSCA 164; (2021) 290 A Crim R 136, 148 [47] (Maxwell P and Beach JA); [2021] VSCA 164.

[51] See Gregory [2017] VSCA 151; (2017) 268 A Crim R 1, 24-5 [96]-[99] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151.

[52] Referring to Sharbell v The Queen [2018] VSCA 324, [5] (Maxwell P and Niall JA); Fernando v The Queen (2017) 268 A Crim R 26, 41 [61]-[62] (Redlich JA); [2017] VSCA 208 ('Fernando').

[53] Citing DPP (Cth) v Maxwell (2013) 228 A Crim R 218, 223 [21], 227 [34]-[35] (Maxwell P, Weinberg and Priest JJA); [2013] VSCA 50 ('Maxwell').

[54] The Director referred to Arici, Roach and Al-Dimachki, to which the judge had referred, and to the following cases: Sengul v The King [2023] VSCA 63 (T Forrest and Taylor JJA); DPP v Christie [2024] VSCA 198 (Emerton P, Priest and McLeish JJA); Needham v The King [2024] VSCA 270 (Beach JA).

[55] Fernando (2017) 268 A Crim R 26, 41 [62] (Redlich JA, but see Ashley JA at [10]-[11]); [2017] VSCA 208.

[56] See DPP v Fatho [2019] VSCA 311, [50]-[56] (Maxwell P, Priest and Beach JJA) ('Fatho'), citing DPP v Condo [2019] VSCA 181, [20] (Maxwell P, T Forrest and Weinberg JJA).

[57] [2023] VSCA 321, [54] (Emerton P, Priest and Taylor JJA).

[58] DPP v Currie; DPP v Daniels (a pseudonym) [2021] VSCA 272, [118] (Beach, McLeish and Walker JJA); DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350 ('Karazisis').

[59] Drugs, Poisons and Controlled Substances Act 1981, s 71AA(1).

[60] The prescribed commercial quantity for 1,4 butanediol is 2.0 kg: Drugs, Poisons and Controlled Substances Act 1981, s 70(1); sch 11, pt 3.

[61] See, eg, DPP v Nichols [2025] VCC 370, [46] (Judge Sexton).

[62] See, eg DPP v Henderson [2021] VCC 1398, [73] (Judge Wraight). I have not included in this range offences involving hundreds or thousands times the commercial quantity (see, eg, DPP v Moustafa [2018] VSCA 331, which involved a sentence of 8 years' imprisonment for a quantity of approximately 4,400 times the commercial quantity).

[63] Ellis [2018] VSCA 221, [29] (Whelan and Beach JJA).

[64] Needham [2024] VSCA 270, [45] (Beach JA); Sengul [2023] VSCA 63, [44], [45] (T Forrest JA and Taylor JJA).

[65] Roach v The Queen [2020] VSCA 205, [55] (Maxwell P and Weinberg J).

[66] Nguyen v The Queen [2016] HCA 17; (2016) 90 ALJR 595, 607-8 [64] (Gageler, Nettle and Gordon JJ) (citations omitted, emphasis added).

[67] Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1).

[68] Sentencing Act 1991, 18Z(1)(d).

[69] [2016] VSCA 99, (Weinberg P, Redlich and Ferguson JJA) [31]-[35].

[70] [2017] VSCA 150, [57]-[64] (Ashley and Priest JJA, Croucher JA agreeing at [97]-[99]).

[71] Ellis [2018] VSCA 221; Arici [2019] VSCA 228, Roach [2020] VSCA 205, Al-Dimachki [2021] VSCA 98; Sengul [2023] VSCA 63; DPP v Christie [2024] VSCA 198; Needham v The King [2024] VSCA 270.

[72] DPP v Christie [2024] VSCA 198.

[73] [2017] VSCA 151; (2017) 268 A Crim R 1, 25 [100]-[102] (Maxwell P, Redlich and Beach JJA); [2017] VSCA 151.

[74] (2017) 268 A Crim R 26, 41, [62] (Redlich JA); [2017] VSCA 208.

[75] (2013) 228 A Crim R 218, 223 [21] (Maxwell P, Weinberg and Priest JJA); [2013] VSCA 50.

[76] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 661 [119]; [2010] VSCA 350. See also, Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 465-6 [1] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49 ('Green').

[77] DPP v Zhuang [2015] VSCA 96, [47] (Redlich, Priest and Beach JJA); DPP v Mwamba [2015] VSCA 338, [154] (Priest, Beach and Kaye JJA); CMB v Attorney-General (NSW) (2015) 256 CLR 346, 358-60 [33]-[36] (French CJ and Gageler J), 366-7 [57]-[61], 370 [66] (Kiefel, Bell and Keane JJ); [2015] HCA 9; Cumberland v The Queen [2020] HCA 21; (2020) 379 ALR 503, 510-511 [33] (Bell, Gageler and Nettle JJ); [2020] HCA 21.

[78] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 657 [100] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350; DPP v Goldsmid [2023] VSCA 124, [93] (Beach, Kyrou and T Forrest JJA) ('Goldsmid').

[79] See DPP v Lombardo (2022) 102 MVR 18, 45 [108] (McLeish, Niall and Kennedy JJA); [2022] VSCA 204; Goldsmid [2023] VSCA 124, [94] (Beach, Kyrou and T Forrest JJA). See also Green [2011] HCA 49; (2011) 244 CLR 462, 479-480 [40]-[43] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.