DPP v Fleiner [2010] VSCA 143

Court of Appeal (Vic)|2010-06-18|Before: NETTLE and HARPER JJA and HANSEN AJA

DPP v Fleiner (Unreported, County Court of Victoria, Acting Judge Cotterell, 23 June 2009)

CRIMINAL LAW - Sentence - Crown appeal - Whether manifestly inadequate - Trafficking in a commercial quantity of a drug of dependence, theft, possession of drugs of dependence and possession of a traffickable quantity of unregistered firearms - Sentenced to a total effective sentence of six years imprisonment - Non parole period of four years - Whether too much weight given to mitigating factors - Whether sentencing discretion miscarried - Prior convictions for cultivating a commercial quantity of a narcotic drug - Offender sentenced as a serious drug offender - Protection of the community - Specific and general deterrence - , - , - ; and ; considered - Whether something more than manifest inadequacy alone is required to warrant appellate intervention - Appeal allowed - Total effective sentence increased to 8 years' imprisonment - Non parole period increased to five years.

1 We have had the advantage of reading in draft the reasons for judgment of Harper JA and agree with his Honour that the appeal should be allowed and the respondent re-sentenced as he proposes.

2 On 26 May 2009, the respondent pleaded guilty in the County Court to one count of trafficking in a commercial quantity of a drug of dependence (cannabis) (Count 1); one count of theft (Count 2); one count of trafficking in a drug of dependence (MDMA, or 'ecstasy') (Count 3); one count of possession of a drug of dependence (cocaine) (Count 4); one count of possession of a drug of dependence (methylamphetamine) (Count 5); one count of possession of a drug of dependence (Lysergic Acid Diethylamide, or 'LSD') (Count 6); and possession of a traffickable quantity of unregistered firearms (Count 7). He also pleaded to the summary offence of possession of property suspected of being the proceeds of crime.

3 After a plea hearing, the respondent was on 23 June 2009 sentenced on Count 1 to 4 years' imprisonment. This was the base sentence. On Count 2, he was sentenced to 12 months' imprisonment; on Count 3, to 2 years' imprisonment; on each of Counts 4, 5 and 6, to 3 months' imprisonment; and on Count 7 to 3 years' imprisonment. He was also sentenced, on the summary charge, to 4 months' imprisonment. The sentencing judge directed that 2 months of the sentence imposed on Count 2, 4 months of that imposed on Count 3, and 18 months of that imposed on Count 7, be served cumulatively upon the sentence imposed on Count 1 and upon each other. The sentence of four months' imprisonment on the summary charge was ordered to be served concurrently with all other sentences. The total effective sentence was therefore 6 years' imprisonment. Her Honour fixed a period of 4 years' imprisonment before the respondent was to become eligible for parole.

4 The Director of Public Prosecutions contends that the sentences imposed in respect of each of Counts 1 (trafficking in a commercial quantity of cannabis) and 7 (trafficking in firearms) is manifestly inadequate. The same criticism is made of the total effective sentence and the non-parole period. All are included in the sole ground of appeal. As particulars of this ground, the Director relies upon what he contends was her Honour's failure:

(a) to sufficiently punish the respondent to an extent which is just in all of the circumstances;

(b) to sufficiently deter him or other persons from committing offences of a same or a similar character;

(d) to sufficiently protect the community from the offender;

(e) to have sufficient regard to the maximum penalty prescribed for the offences;

(f) to have sufficient regard to the nature and gravity of the offences;

(g) to have sufficient regard to the respondent's culpability and degree of responsibility for the offences;

(h) to have sufficient regard to the deleterious impact of the production and dissemination of drugs in the community;

(i) to have sufficient regard to the respondent's prior criminal history;

(j) to have sufficient regard to the respondent's categorisation as a serious drug offender.

As a final particular, the Director relies upon the contention that her Honour gave too much weight to mitigating factors concerning the offender.

5 It is not suggested that her Honour acted upon a wrong principle, or allowed extraneous or irrelevant materials to guide or affect her, or made an identifiable error about the facts, or did not take into account some material consideration. It is nevertheless, according to the Director, a case in which the sentences imposed on Counts 1 and 7 are so manifestly inadequate that the sentencing discretion must have miscarried.[1]

6 The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment. For theft, the maximum penalty is 10 years' imprisonment. For trafficking in a drug of dependence, the maximum penalty is 15 years' imprisonment; and for possession of a drug of dependence, the maximum penalty is 1 year's imprisonment if the possession is for purposes not related to trafficking and 5 years' imprisonment if it is for those purposes. The maximum penalty for possession of a traffickable quantity of unregistered firearms is 10 years' imprisonment, and for dealing with property suspected of being the proceeds of crime, 2 years' imprisonment.

7 In opening the prosecution case on the plea, the prosecutor informed her Honour that the respondent's arrest followed an investigation which began on 10 October 2006. This established that the respondent owned a property at 14 Branton Drive, Hampton Park, and another at 1390 Highland Way, Won Wron. The investigation also established that the respondent was engaged in drug trafficking and the cultivation and trafficking of cannabis. When the police conducted a search of the premises at 14 Branton Drive, Hampton Park, they discovered 1.44 kilograms of dried cannabis, 19.1 grams of a substance containing ecstasy, 10.8 grams of a substance containing cocaine, and .9 of a gram of a substance containing methylamphetamine. They also found 56 ecstasy tablets, weighing in all 18.3 grams, 12 milligrams of LSD, and assorted ammunition.

8 The police also searched the respondent's holiday house at Won Wron. They there found 45 firearms, a large amount of ammunition, dozens of firearm parts, 78 grams of dried cannabis and three ecstasy tablets, weighing .7 of a gram.

9 The investigation also established that the respondent was involved in the cultivation of cannabis at 42 Oaktree Drive, Hampton Park. When searched, 75 cannabis plants, weighing 69.58 kilograms, were discovered. A commercial quantity of these plants, by weight, is 25 kilograms. The police also discovered 1.3 kilograms of dried cannabis, an ecstasy tablet weighing .2 of a gram, a double-barrelled shotgun, $76,000 in cash, paraphernalia associated with cultivating cannabis, and fingerprints which matched those of the respondent. A set of keys to a property at 16 Verona Drive, Hampton Park were also seized.

10 During the course of the investigation, some 5,000 telephone intercepts were made. The prosecution case was that the conversations thus overheard included offers made by the respondent to sell a total of some 2.3 kilograms of cannabis. The intercepts also uncovered further evidence that the respondent had an interest in the property at 16 Verona Drive, Hampton Park. When searched, the police found at that property 41 cannabis plants weighing 11.2 kilograms, assorted plant nutrients, and other paraphernalia for the cultivation of cannabis. At Verona Drive, as at Oaktree Drive, the supply of electricity had been illegally bypassed. Hence Count 2, that of theft. Count 1 is based upon the total quantity of cannabis discovered at Oaktree Drive and Verona Drive, the dried cannabis found at Branton Drive, and the sales made by telephone during intercepted calls. Count 3 is based in part upon the discovery of ecstasy at Branton Drive. It is also based on the evidence that, during the course of one intercepted telephone conversation, the respondent referred to the number of ecstasy tablets in his possession or control. Various figures were mentioned; and at one point the words 'a thousand' were used. Other references to smaller quantities were made during other intercepted calls, and these too formed the foundation of this count.

11 Counts 4, 5 and 6 all relate to Branton Drive, where the cocaine, methylamphetamine and LSD were found. The foundation for Count 7 is the discovery of the cache of arms at the Won Wron property.

12 There is evidence here of serious criminality. A total of 116 cannabis plants was discovered. A lucrative trade in cannabis was revealed by the intercepts. The quantity involved was 3.34 times the amount which qualified as a commercial quantity. An estimate of the value not only of all the cannabis found at the three relevant premises, but also the subject of sales made by telephone at the time the respondent's telephone calls were being intercepted, came to somewhere between about $190,000 and about $300,000. Ammunition, and five different varieties of drugs were found at Branton Drive. A sophisticated hydroponic system had been installed at Oaktree Drive. And the cache of arms at Won Wron included 45 weapons, 35 above the 'traffickable quantity' of 10.

13 On the plea, counsel for the respondent sought to ameliorate some of that criminality by submitting that the reference on the intercept tapes to a thousand ecstasy tablets was equivocal, that others were at least as much involved with the cultivation of cannabis, and that the firearms were merely collectors' pieces. In support of the latter proposition, counsel pointed to the fact that the respondent had no history of using firearms in a way that was connected to criminality, apart from a conviction for possession in 2003.

14 In his submissions concerning the individual circumstances of the respondent, his counsel put to the sentencing judge that the respondent had had a difficult childhood. He was born on 1 May 1972 and is therefore now 38 years of age. He was illegitimate, and because his mother's family were of strict Catholic stock, he was at the age of six weeks adopted by John Fleiner and his wife Barbara.

15 In about 1977, after experiencing problems at school, the respondent was diagnosed with attention deficit hyperactivity disorder. He was treated with drugs, but these did not work; and as a consequence he was referred to a child psychologist. Upon examination, he was found to be intelligent but with a short concentration span and a deficit in his visual perceptual motor function. He was also insecure, with a poor self-image and low self-esteem.

16 Because he had proved to be a difficult pupil, the respondent was in year 7 (when he was 12 years old) placed in a school for children with learning and other problems. These continued to the point where, on 29 April 1987, shortly before his 15th birthday, he was given an exemption from further attendance at school; and so his scholastic career came to an end.

17 Shortly after that career concluded, another - as a law breaker - began. The respondent's first appearance in the Children's Court was in August 1988, when he was 16 years of age. He was placed on probation for theft and other offences involving dishonesty, together with driving offences. Other appearances at the Children's Court followed shortly thereafter.

18 On 28 January 1989, the respondent suffered a significant closed head injury following a motor cycle accident. He also suffered injuries to his liver (which was in part removed) and the loss of his right kidney. Fortunately, little if any acquired brain damage resulted.

19 These injuries did not dissuade the respondent from continuing to disobey the law. On 6 November he was convicted of theft and going equipped to steal, together with driving offences. He was given a suspended sentence. On 19 July 1990, he was convicted of 10 counts of theft, six counts of attempted theft, and 15 counts of going equipped to steal. Again, he was given a suspended sentence, but was convicted of handling stolen goods and traffic offences on 25 September 1991; and this resulted not only in a total sentence of 2 months' imprisonment, but a conviction for breach of his earlier sentences. As a further result, he received an additional sentence of six months' imprisonment.

20 There followed on 20 January 1993 convictions for theft and other offences, on 9 August 1993 of behaving in an offensive manner in a public place, on 9 November that year of a social security fraud, and on 21 September the following year of forgery, uttering and imposition.

21 He then enjoyed some four years during which he did not offend. Indeed, between the ages of 22 and 28 he incurred only three convictions (in, respectively, August 1998, April 1999, and May 2000) for relatively minor offences. But he had become a user of cannabis, by 1996 very heavily so. And it was easier to grow the plants than to pay for the product. On 30 April 2003, the respondent was convicted of two counts of trafficking in a drug of dependence (cannabis L), one count of cultivating that plant, it being a narcotic, and one count of cultivating a commercial quantity of cannabis. He was sentenced to imprisonment on each count, with a total effective term of 3 years' imprisonment - two years of which were suspended for two years.

22 Cultivating a commercial quantity of a narcotic drug such as cannabis is an offence against s 72A of the Drugs, Poisons and Controlled Substances Act 1981. Such an offence falls within clause 4 of Schedule 1 of the Sentencing Act 1991 as being a 'drug offence' within the meaning of that expression in s 6B of that Act. Section 6B also defines the expression 'serious drug offender' as meaning an offender (other than a young offender) who has been convicted of a drug offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre.

23 The present respondent's conviction on 30 April 2003, and subsequent imprisonment, on the count of cultivating a commercial quantity of cannabis therefore resulted in his becoming a serious drug offender. This conviction then had the further consequence that, if and when a court again came to sentence him to imprisonment for another 'drug offence' as defined in s 6B, the court would be required to regard the protection of the community from the offender as the principal purpose for which the sentence was imposed; and it would be open to the court, in order to achieve that purpose, to impose a sentence longer than that which would have been proportionate to the gravity of the offence considered in the light of its objective circumstances.[2]

24 Trafficking in a commercial quantity of a drug of dependence (such as cannabis) is a s 6B 'drug offence'. It follows that when, on 26 May 2009, the respondent (a) was convicted on Count 1, and (b) the sentencing judge formed the opinion that a sentence of imprisonment should be imposed, her Honour was (i) bound to have regard to the protection of the community from the respondent as the principal purpose for which she imposed a sentence of imprisonment upon him, and (ii) should have considered whether, in order to achieve that purpose, she should impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

25 Significantly in relation to Count 7 of the present counts, on 30 September 2003, the respondent was convicted of being in possession of an unlicensed longarm while a non-prohibited person, possession of an unregistered firearm without being licensed, possession of a prohibited weapon without being exempted, and possession of a controlled weapon without lawful excuse. As a consequence, he was sentenced to a total of 2 months' imprisonment. As a further consequence he became a prohibited person within the meaning of that expression in s 3 of the Firearms Act 1996, and thus by s 5 of that Act forbidden to possess, carry or use a firearm, whether or not that firearm is registered; although, if unregistered, the penalty is increased.

26 Against this background of offending, it is of course necessary when considering what disposition is appropriate for the present respondent to give effect to the statutory requirement that the protection of the community be the principal purpose for which the sentence on Count 1 should be imposed. In addition, general deterrence and specific deterrence are each considerations of considerable importance. As counterweights, counsel for the respondent relied before the sentencing judge on his co-operation with the investigating police; his plea of guilty, made at the first reasonable opportunity; the considerable delay between arrest and sentence (her Honour declared that the respondent had by the date of sentence served 935 days of pre-sentence detention); the fact that over that period the respondent had consistently tested drug-free, whereas even during previous periods of imprisonment - let alone when not incarcerated - he had been a consumer, at times a heavy consumer, of cannabis; his prospects of employment post-release (his sister gave credible evidence of her ability and willingness to offer him a job); and (insofar as these were relevant) principles of parity - several of his co-offenders having previously been sentenced.

27 For its part, the Crown emphasised on the plea that the drug-related offences fell into one category, and the firearms offences into another, with the consequence that 'two disparate and very serious sets of offending [are] to be dealt with.' It was submitted that, in those circumstances, 'a sentence of somewhere between nine and ten years on the top [as a] head sentence and a non-parole period of six [or] seven years is appropriate'. Counsel referred to the fact that the respondent's conviction on 30 April 2003 on two counts of trafficking in, and two counts of the cultivation of, cannabis, was followed not much more than two years after his release from prison for those offences by his arrest for the offences now before this Court.

28 At one point during the course of the plea, counsel for the respondent said that 'if your Honour takes the view that there is prospects of rehabilitation, four and a half to six on the top for that offence' [Count 1].[3] This was relied upon by counsel for the Director before us, who highlighted the apparent discrepancy between that submission and the sentence of four years' imprisonment which was finally imposed. But we were urged by senior counsel for the respondent, who did not appear below, to put his predecessor's statement to one side; and, indeed, it is not easy, when one reads in its full context that passage of the discussion before her Honour, to be confident about what counsel meant - or confident that, if he meant what the Director would have us accept, he (counsel for the respondent) did not quickly resile from his original position.

29 Count 7, that alleging possession of a traffickable quantity of unregistered firearms, is based upon s 7C of the Firearms Act 1996. The purposes of that Act are set out in s 1. They are to give effect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licensing them, and for the regulation of their possession, carriage and use, for dealing in them and acquiring and disposing of them, and for their registration and secure storage. Consistently with this, s 7C forbids the possession of more than 10 firearms that are not registered. On the respondent's plea, the Crown pointed to the circumstance that mere possession was enough to enliven s 7C, and it was no excuse that the weapons in question were merely collectors' items. In any event, counsel for the prosecution continued, the respondent's collection was, as he described it, 'an arsenal'. Not only that, but the respondent was found in possession of what (according to the prosecutor) were 'vast amounts of ammunition'. On that basis, he submitted that a sentence 'in the order of about 7 years is not an inappropriate sentence for this offence ... alone'.

30 The Director, in his outline of submissions on this appeal, pointed to the large quantity of cannabis grown at Oaktree Drive and Verona Drive, particularly when coupled with the dried cannabis found at Branton Drive. He also pointed to the approximately 2.3 kilograms of cannabis said to have been the subject of sales transacted by telephone and recorded during the course of the telephone intercepts. He referred, in addition, to the firearms offences and the fact that they were, as he put it, 'secreted' in two different locations at Won Wron. The Director again noted (as he had done on the plea) that, in respect of Count 1, the commercial quantity limit was exceeded by more than 58 kilograms (or more than 3.34 times) and, in respect of Count 7, the traffickable quantity limit was exceeded by 4.5 times.

31 In these circumstances, it was submitted, the culpability of the respondent is very high. The offending involved planning, sophistication and industry. The impact of the offending upon the Victorian community was, the Director submitted, 'truly catastrophic'. The distribution of drugs, he contended, slowly poisons the social fabric, whilst the proliferation of firearms endangers the general safety of the community. In this context, it is relevant, the Director submitted, that the respondent has an extensive criminal history and hence presents a danger to the community, particularly given what the Director described as the respondent's repeated failure to respond to both rehabilitative-based and custodial sentencing dispositions. The respondent had demonstrated, the Director submitted, a contumelious disregard for the law. In these circumstances, it was further submitted, the sentences imposed were explicable only upon the basis that her Honour's sentencing discretion had miscarried as a result of giving too much weight to mitigating factors and too little weight to the gravity of the several offences, the maximum penalties for them, and the respondent's criminal history. Those purposes which in this case the imposition of sentences were particularly required to advance - general and specific deterrence and the protection of the community - were not given the importance they deserved.

32 In his written submissions in response, counsel for the respondent referred to the matters put on the plea (his co-operation with the police, his early plea of guilty, the delay between arrest and sentence and the necessity to have appropriate regard to the principle of totality). Given these mitigating circumstances, it was submitted that neither the sentence imposed on Count 1 nor the sentence imposed on Count 7 can be described as manifestly inadequate. Moreover, it was submitted, the sentencing judge was mindful of the necessity for both general and specific deterrence and the obvious gravity of the respondent's criminality.

33 These submissions were enlarged and expanded upon during oral argument before us. Counsel for the Director emphasised that, following his conviction on 30 April 2003 of two counts of trafficking in, and two counts of cultivating, a narcotic plant, the respondent was to be sentenced as a serious drug offender.[4] Accordingly, if the court thought that a sentence of imprisonment was justified (as in this case it undoubtedly was), it was bound to regard the protection of the community as the principal purpose for which the sentence is imposed; and, in order to achieve that purpose, it was lawful for the sentencing judge to impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.[5] Counsel urged us to proceed on the basis that, in the light of this legislative requirement, the protection of the community and considerations of specific and general deterrence were the prime sentencing considerations; and a sentence of four years' imprisonment was manifestly inadequate if those purposes were to be achieved.

34 In pursuing this submission, counsel for the Director also urged upon us the importance of taking adequately into account the facts that the respondent was, when arrested on the present charges on 1 December 2006, a person with an extensive criminal history who, having been released from prison in early 2004, was engaging in the same conduct from the same premises as led to his earlier convictions. He had thus deliberately and contumeliously flouted the law, for profit - his profit; and, in this context, counsel pointed to the fact that the sum of $76,000 in cash was found at Oaktree Drive. In these circumstances, it was submitted, rehabilitation was a secondary consideration, and all other mitigating factors had to give precedence to the primary duty of the court: to protect the community, and to deter the respondent and others from the impugned conduct. Indeed the Director contended that, even had the respondent been a first offender, the criminality involved in Count 1 was such as to remove from the appropriate range a sentence of four years' imprisonment.

35 On Count 7, the Director contended that, this being the first occasion on which on offence against s 7C of the Firearms Act had come before this Court, or perhaps been prosecuted, this Court should take the opportunity to establish a benchmark against which subsequent sentences could be assessed. But, his argument continued, the sentence imposed by her Honour was derisory. Section 7C forbids the possession of more than 10 firearms that are not registered. Discounting the shotgun found in Branton Drive, the respondent had in his possession at Won Wron, 45 firearms, none of which were registered. This number in one place could accurately be described, he submitted, as an arsenal.

36 The Director also argued that this Court should not apply the law as expounded in DPP v Bright.[6] Redlich JA, in a judgment in which Chernov and Vincent JJA agreed, there said (in a passage in which I have supplied the emphasis):

A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke[7] and DPP v Johnston.[8] One is that an appeal should not be brought unless the sentence reveals such 'manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle'. An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be 'clear and egregious', the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and 'undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes'. When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a 'rare and exceptional' character which calls for restraint, even where manifest inadequacy may be present, the court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.

37 The Director submitted that an examination of the authorities does not suggest that something more than manifest inadequacy alone is required to warrant appellate intervention. A requirement for 'something more' was for the first time imposed in Bright's case, but in doing so this Court went beyond the law as it previously stood. Such an extension, the Director contended, was wrong. The error can be seen in part in the lack of clarity about what the expression 'something more' means. Although in Bright the Director succeeded, the seeker after clarification will not find the 'something more' explained in Bright itself - a circumstance sufficient on its own to demonstrate (so the Director contends) that there was in that case an

37 incorrect application of principle. This, the Director submits, should now be corrected.

38 In my opinion, Redlich JA in his judgment in Bright intended no more than to emphasise that manifest inadequacy will not be shown unless it can be concluded - at the least - that, in arriving at the sentence in question, the sentencing judge committed such a serious error as to amount to an error in principle.[9] An obvious example would arise were the sentencing judge to believe that the maximum penalty was much lower than it was in fact. Such an error might also be exposed in a number of other ways: for example, were the sentence to reveal such an idiosyncratic view of the offending and its criminality that the public conscious would be shocked were a correction not effected;[10] or (which is much the same thing) were the objective gravity of the offence not assessed so as to result in a reasonable degree of proportionality between the sentence and the gravity of the crime;[11] or were the sentence for some other reason to be impossible to reconcile with the principle that, 'so far as the subject matter permits ... there ... be uniformity in sentencing.'[12]

39 There may be additional occasions for bringing a Crown appeal, as R v Clarke demonstrates.[13] Thus it may be 'necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons', or 'to enable the courts to establish and maintain adequate standards of punishment for crime'.[14] In these cases it might not be particularly helpful to describe the sentence under appeal as 'manifestly inadequate', because it might be consonant with a factor - for example, current sentencing practices - to which, by s 5 of the Sentencing Act, the sentencing judge must have regard; but, at the same time, open to a successful appeal because not consonant with other such factors - for example, the maximum penalty prescribed for the offence.

40 In my opinion, considered in the light of these precepts, the sentence imposed upon the respondent on Count 1 revealed 'such manifest inadequacy as to constitute error in principle' in two respects: the sentencing judge failed to give adequate consideration both to the protection of the community and to the respondent's previous character. By his resumption, after his April 2003 convictions, of his trafficking in drugs of dependence (cannabis and ecstasy) the respondent demonstrated not only a contumelious disregard for the law, but also that - despite a term of imprisonment - he remains a danger to the community. In its sophistication, the operation demonstrated the careful planning which lay behind it. In my opinion, and taking into account not only all the matters put in mitigation on his behalf but also the principle of double jeopardy, a sentence of six years' imprisonment on Count 1 is appropriate. I do not think that the other sentences imposed by her Honour were manifestly inadequate. In this context, I note that the sentence imposed on Count 7 was almost a third of the maximum for an offence to which the respondent pleaded guilty, and in circumstances in which there was no evidence of any actively criminal conduct during which the firearms were employed.

41 I would take the sentence of six years' imprisonment on Count 1 as the base sentence. I would order that 2 months of the sentence imposed on Count 2, 4 months of that imposed on Count 3, and 18 months of that imposed on Count 7, be served cumulatively upon the sentence imposed on Count 1 and upon each other. I would further order that the sentence imposed in respect of the summary offence be served concurrently with all other sentences. The total effective sentence will therefore be 8 years' imprisonment.

42 There remains the question of an appropriate non-parole period. I accept, as did her Honour, that the respondent's approach to his rehabilitation has, since his incarceration, been commendable; that he has since then been drug-free; and that there will, through his sister and perhaps elsewhere, be opportunities on his release for him (as her Honour put it in her sentencing remarks) 'to resume a useful and productive life'. In these circumstances, I would order that the respondent be required to serve 5 years' imprisonment before being eligible for parole.

[1] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505.

[11] DPP v Bright, above n 6, [11].

Poisons and Controlled Substances Act 1981

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