DPP v Pham [2017] VCC 905

CRIMINAL LAW - Sentence - Relevant principles to be applied where no actual drugs were involved - No substituted delivery - Whether offence of 'attempt' to be sentenced in the same way as the completed offence of trafficking - Mokbel v The Queen (2011) 211 A Crim R 37; [2011] VSCA 34; Zandi v The Queen [2015] VSCA 24; R v Peng Gao; R v Benjamin Lim [2007] NSWCCA 343; Trajkovski v The Queen (2011) 211 A Crim R 118; [2011] VSCA 170; Taumoefolau v The Queen (2015) 253 A Crim R 508; [2015] VSCA 221, discussed; Jurkovic, Bozo v R (1981) 6 A Crim R 215; R v Campanella (2004) 90 SASR 1; [2004] SASC 99, distinguished

CRIMINAL LAW - Sentence - Quantity-based sentencing regime - Offender attempted to traffick 250 times a large commercial quantity - Correlation between amount of drugs and sentences imposed - Haddara v The Queen [2016] VSCA 168; R v Pidoto & O'Dea (2006) 14 VR 269; [2006] VSCA 185, applied

CRIMINAL LAW - Sentence - Current sentencing practices - Serious example of offence - Whether bound by past sentences - Serious but not so serious as to warrant imposition of maximum penalty - Sentenced to 15 years' imprisonment with a non-parole period of 11 years and six months - The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48, applied; Stanley (A Pseudonym) v The Queen [2017] VSCA 54; Gregory (A Pseudonym) v The Queen [2017] VSCA 151, considered

For the Crown Mr A Albert Office of Public Prosecutions

1. Anthony Pham, you have been found guilty by a jury of one charge of attempting to traffick in a drug of dependence, namely cocaine, being a quantity not less than a large commercial quantity, contrary to s. 71 of the Drugs, Poisons and Controlled Substances Act.[1] The offence occurred between 6 and 9 September 2015. The maximum penalty is life imprisonment.[2] A large commercial quantity is one kilogram.[3] Your offending relates to 250 kilograms.

1. The circumstances of your offending, between 6 and 9 September 2015, emerged in the course of a short trial, and I am required to sentence you in accordance with the jury verdict.

1. Your offending emerged out of a joint Commonwealth and State multi-agency organised crime task force. Due to operational sensitivities, the full details of the wider operation were not able to be revealed in the course of the trial. In any event, you became the subject of a covert police operation in September of 2015. A covert operative of Victoria Police, who went by the name of "Mika Nolan", was tasked with making contact with an unidentified male who was known as "Sunny". Between 28 August and 4 September 2015, Mika, introducing himself as a "friend of Johnny's", had several communications with Sunny presumably to discuss arrangements surrounding a delivery of illicit drugs. These communications, however, came to no avail.

1. Subsequently, on 6 September 2015, Mika received instructions from his controller to make contact with an unidentified male known as "Andy", who was in fact you. On that same day, Mika attempted to call you three times, all to no answer. A subsequent text message on that same day read:

"Hi Andy, I'm Johnny's mate. We need to catch up for coffee tomorrow at 11 am. Ring me when you get this message, Mika".

1. Later that afternoon, you received a telephone call from Mika which was recorded and played to the jury. During this short conversation, you and Mika arranged to meet the following day and Mika told you that he would send you a text message with the exact details.

1. As discussed during the telephone conversation, Mika sent a subsequent text message to you stating the address for the meeting that was to occur on 7 September, which was at a café in St Kilda. You sent Mika a text message acknowledging his message with the address.

1. On 7 September 2015, before entering the café, Mika was given further instructions about your arrangement, and was also given an Australian $5 note with a recorded serial number. The $5 note was given to Mika to give to you to be used as a method of identification.

1. At 10.51am on 7 September, whilst inside the café, you sent a text message to Mika stating that you were inside the café. You then met up inside the café and Mika gave you the $5 note, and in return, you gave Mika the serial number of an Australian $10 note. The serial numbers of the bank notes were recorded.

1. At the meeting, which was recorded covertly by Mika, you discussed with Mika the plan for the delivery opening with a question as to whether he had "the stuff". Mika stated that "we've got the six suitcases" which equated to "two fifty kilos of coke" and clarified with you that this was what you wanted, to which you acknowledged in the affirmative. You then asked Mika whether he could deliver it to your warehouse, however, Mika stated that you would have to come and collect it from the agreed location. You then stated that you were happy to meet at the same café the following day and then proceed together to the location of the delivery.

1. You then agreed to message Mika after you had spoken with "your brother" regarding Mika's payment, which was referred to as "paperwork" in the recorded conversations. There was reference to a brother of yours from overseas.

1. Whilst during this meeting Mika did not specifically refer to 250 kilograms of cocaine, he did refer to, on at least four occasions that he was to deliver 250 kilograms of "coke" to you. When giving evidence, you denied hearing Mika use the word "coke" during this meeting. You also stated in evidence that you did not understand "coke" to mean 'cocaine'. I will return to your evidence shortly.

1. Mika gave evidence that, during your conversation, you sought confirmation about the product that was being delivered, and when doing so, motioned your right index finger to the side of your nose. The prosecution, in its closing address, submitted to the jury that this was to be inferred as a reference to cocaine commonly used in the drug underworld.

1. Upon leaving the cafe, there was an exchange of text messages between you and Mika about the payment Mika was expecting. Initiated by you, you asked Mika how much he was expecting to receive, for which he replied:

1. You acknowledged this and clarified that you were meeting at the same place and time on the following day. You also advised an unknown person by text message that Mika needed "paper", being payment, and you were advised to say nothing to him, but "just do what they said yesterday".

1. On 8 September 2015, Mika attended the café and you were there waiting for him. In the course of this conversation, you became cautious as there were other people within earshot in the café. Mika gave evidence that, at this point, you motioned your index finger to your mouth signalling for Mika not to talk. You then exchanged conversation by writing on a napkin,[4] where you agreed to go to your car so Mika could check that you had the money for his payment.

1. After leaving the café, you and Mika walked over to your van, where you drove Mika to a car park behind Luna Park where Mika's driver, who was in fact another covert operative, was waiting. You then produced a bag which contained bundles of $50 notes, which you counted in $10 000 bundles in front of Mika. The bag contained a total of $100 000. You then handed this bag to Mika, and then followed Mika and his driver in your car to the Novatel Hotel. Mika entered your van, which you proceeded to drive into the underground car park.

1. Upon entering the hotel lobby, you pointed out on two separate occasions to Mika that there were security cameras. It was put to you in cross-examination that the reason for you pointing out the security cameras was that you knew that a drug transaction was about to take place, and that you were concerned about any evidence that may link you to such a transaction. You stated in response to this, that you only pointed to the security cameras to see what Mika's reaction was. The two of you proceeded to a second floor room that had been reserved by Mika.

1. Two hidden cameras from inside the hotel room showed you and Mika enter the room and the six suitcases already present in the room. Mika opened one of the suitcases and showed you what appeared to be a white substance packaged in several brick-like blocks inside the suitcase. Unbeknownst to you, the white substance in the suitcases was not cocaine, but faux cocaine. This is, essentially, why you were charged with 'attempted' trafficking, as opposed to trafficking, as it was the prosecution case that you intended to traffick in a drug of dependence, being cocaine.

1. Mika again confirmed with you that the six suitcases contained 250 kilograms of "coke", with each suitcase containing approximately 40 kilograms each. He opened each of the suitcases for you. After a short discussion in the hotel room, Mika left and you, one by one, took each of the six suitcases down to your van which was parked in the hotel car park.

1. At 4.46pm on 8 September 2015, police executed a search warrant at your residential address in Kings Park where they found the six suitcases in the garage. The suitcases were seized and the 40 kilogram packets were all accounted for. Investigators found $10 000 in cash in a bundle in one of your jackets, and when searching your wallet, investigators also found the Australian $5 note handed to you by Mika at your meeting days earlier, with the same serial number.

1. You effectively made a no comment record of interview, but gave evidence in the trial.

1. You gave evidence that, on or about 4 September 2015, two days before Mika made contact with you, your "sister" contacted you from Vietnam asking you to assist with storing a delivery for her, as she could not rent a storage unit on short notice. You further gave evidence that "sister" in Vietnam does not mean a blood relative, but a female friend.

1. You said that you suggested to your sister that you could store the delivery in your warehouse in Springvale, as it was apparently meant to be the size of a pallet. You gave evidence to the fact that, after initially speaking with your sister, she subsequently sent you a text message stating that the weight of the package was to be "250". You then said that later that same night, you received another text message that it was to be "500". You gave evidence that you did not know what the goods were.

1. You denied to the jury that you heard Mika say "250 kilos of coke" on at least three occasions at the meeting on 7 September 2015. You said that you were never focused on what he was saying, but rather concerned that the delivery was completed for your sister.

1. Your evidence regarding Mika's $100 000 payment was that, at the conclusion of the meeting on 7 September, you sent a text message to your sister in Vietnam asking her how much Mika was to be paid - for which she replied that she was not aware of any payment. Upon Mika stating to you that he required $100 000, your sister, you say, agreed that Mika would be paid this amount.

1. You then gave evidence that, on the evening prior to the transaction on 8 September, you arranged to collect $100 000 in cash, and you did so at the Safeway car park in St Albans, where you met with two unknown individuals, who, after taking a photo of your driver's licence, gave you $100 000 in cash. You said that you did not think that this was strange as, in Vietnam, it is normal to do cash transactions for business.

1. On 8 September 2015, you said that after meeting with Mika inside the café, and denying that you gestured anything to do with cocaine as Mika said in evidence, you followed Mika and his driver to the Novotel Hotel which surprised you, as you thought you were going to some sort of warehouse.

1. It was not until inside the hotel room when Mika opened up the first of the suitcases did it cross your mind, you said, that the substance that was being delivered was an illicit substance. You gave evidence that, after Mika left the hotel room, you said you had no choice but to remove the suitcases from the hotel room. You said that, after you made sure your family was safe, you intended to call the police.

1. In the course of your evidence you also gave an explanation of the $10 000 cash that was found inside a jacket in your bedroom. You said that it was a sort of revolving fund to assist a limited number of your countrymen.

1. The jury must be taken to have rejected your version of events as they were satisfied beyond reasonable doubt that you intentionally trafficked, by arranging to collect, paying for, transferring and storing, a large commercial quantity of what you believed was cocaine. I too reject your evidence beyond reasonable doubt. It had all the hallmarks of a cock and bull story that could not withstand the probing by the learned Crown Prosecutor.

1. The prosecution led evidence from an Australian Federal Police expert who testified that the wholesale value of the cocaine, if it were real cocaine, would be worth between $50 - $60 million. Further, the expert said that, if the drugs were real and sold at street level, their value would be between $150 - $200 million.

1. I accept that these values, particularly the street level values, are somewhat speculative. Regardless, the evidence of the expert does indicate the scale or order of magnitude of this attempt at trafficking.

1. For sentencing purposes, it is necessary to assess the seriousness of the offending.

1. This is the context that you are charged with attempting to traffick a large commercial quantity. A large commercial quantity is one kilogram, and you have attempted to traffick 250 kilograms.[5] Both trafficking, and attempted trafficking, of a large commercial quantity of a prohibited drug carry the same maximum penalty - life imprisonment.[6] That shows the seriousness with which Parliament views this offence.

1. The sheer quantum of the amount of drug you attempted to traffick puts this case towards the upper range of cases of this type. The learned Crown Prosecutor provided a table of Court of Appeal cases that supported a submission that a range of sentences for drug trafficking cases can be derived by making reference to the multiple of the relevant quantity when compared to the legislative maxim for a commercial quantity or a large commercial quantity. This is because the sentencing regime is quantity-based.[7] In your case, the offending involves 250 times what is a large commercial quantity. On that measure, this puts your case at the upper end of the range of drug trafficking offences.

1. In trafficking cases, in terms of moral culpability, it is first necessary to identify your role in the movement of an illegal drug from source to its ultimate consumer.

1. On the question of your role, the learned Crown Prosecutor submitted that you were more than a courier and submitted that you were a trusted participant where you were facilitating the movement of drugs from source to ultimate consumers by obtaining instructions, procuring and making payment of $100 000 and collecting and storing the drugs. It was submitted, therefore, that you were an important part of the syndicate or enterprise.

1. Your counsel submitted that the Court could not make a finding as to whether you were a member of the syndicate or enterprise. Your counsel referred to the fact that the original target of surveillance was another individual and that you were not on the radar of police previously. You then did emerge and were involved over a three-day period where it was not contested that you were in touch with others, had two meetings with Mika, procured the money and then took delivery of the drugs. In effect, it was submitted you were asked to undertake a specific task which you did so this went to reduce your moral culpability. You indicated in the first meeting with Mika that you had been told by an unknown person to collect the goods.

1. In terms of your role, your counsel submitted that your conduct should be characterised as that of a courier. Alternatively it was submitted that the Court could not find that you were part of a drug trafficking syndicate or enterprise. Your counsel referred to evidence of the prosecution expert witness who indicated that it was common that drug syndicates 'sub-contract' out particular activities, which could include a role such as yours. I give that evidence little weight in that the expert indicated that he was not referring to this specific case. This case has to be determined on the available evidence and reasonable inferences that can be drawn from the evidence.

1. I accept the prosecution characterisation of your role. Your conduct indicates that you were prepared to become involved when the opportunity was presented to you. Your culpability is high, given that you are in contact with others involved in the proposed consignment before you first made contact with Mika. In addition, you had the necessary equipment by way of a delivery van, and if necessary, a warehouse. Before you met Mika, you had obtained the necessary mode of identification for the meeting, and had been advised of the quantum of drugs to be collected, albeit there was an issue as to whether it was to be 250 or 500 kilograms.

1. In the first café conversation, you did not dissent when Mika said he was "Johnny's mate". You also evidenced familiarity with the individual named "Sunny".

1. You discussed the proposed amount to be received with Mika. After the first meeting you then communicated with an unknown person and then obtained the $100 000 cash. You then delivered the cash to Mika the next day and collected the drugs. You were a willing participant who was trusted to arrange the purchase, receive and deliver a large sum of cash, and then receive what you thought was a very valuable shipment of an illegal drug.

1. All these actions that I have referred to lead to a conclusion that you were more than a mere courier. Your role was higher than that, and your interactions with others were such that I am satisfied beyond reasonable doubt that you must have known you were involved in a significant way in what was to be a major drug transaction. There is not enough evidence to reach any further conclusions as to your involvement.

1. Due to the nature of the operation, the Court is not in a position to know of the scale or sophistication of the syndicate or organisation with which you were undoubtedly involved.

1. Labels, therefore, are of only limited assistance. You are to be sentenced, as I have indicated, for your conduct with the context of the trafficking operation.

1. As the High Court indicated in The Queen v Olbrich,[8] it is often difficult to ascribe a precise role of any particular individual in a drug trafficking operation.[9] This is the position here, and you must, therefore, be sentenced on the basis of what the evidence shows that you actually did. Having considered all the evidence as to your role, which must be taken that the jury accepted, albeit over a limited period, it is well above that of a mere courier.

1. In reaching this conclusion, it is important to note that this is not a case where a vulnerable individual was pressured or coerced into committing an offence that would have otherwise not be committed.

1. Further, I do not accept that the transaction should be characterised by asking whether, "but for" the actions of the police, the offending would not have occurred. As indicated in the course of argument, a better analysis is that within the drug milieu there are persons willing to undertake dealings of various types in the movement of illegal drugs from source to ultimate consumer, and you were one of those who, when the opportunity arose, willingly participated in circumstances where you had the means to assist, namely a van and a garage.

1. Turning to the submission that the offending was as a result of a police operation, I do not give that weight as a matter of mitigation. Your counsel sought to submit that, but for the role of Mika and the authorities, you would not have committed the offence. I do not accept that. This should not be seen as a case where the police could be said to have incited or encouraged you to commit the offence. I do not see the matter as one where there is any suggestion whatsoever of police impropriety. On the contrary, I am satisfied that this type of operation is a legitimate police tactic to disrupt drug trafficking operations.

1. It follows that I regard your culpability for this offending as high, notwithstanding that no drugs would ever have entered the marketplace. I do not accept the submission that the involvement of the police reduces your moral culpability.

1. This is consistent with cases such as Mokbel v The Queen[10] and Zandi v The Queen[11] where the focus is on the actions of the offender who, at all times, believed he was dealing with real drugs. This is the case here.

1. Your personal circumstances were set out on the plea. You are aged 46 and arrived in Australia when you were aged 18 after fleeing Vietnam and spending time in a refugee camp in Indonesia. You ultimately sponsored your parents and siblings to come to Australia. You completed two years of VCE at the Collingwood Secondary College, and then went onto obtain tertiary qualifications from the University of Melbourne in Information Technology. After obtaining those qualifications, you worked in a number of businesses as a bookkeeper and in community organisations for a period of approximately 15 years. Thereafter, from 2008, you established a business supplying and equipping nail salons. You transferred this to your cousin in 2012, but continue to work in the business. You have also worked on farms and as a handyman.

1. In addition, you have a spouse who has been in Court to support you and two school-age children, aged 11 and 15, the older of which is in a selective school. This indicates that you have family and community support, and thus would be in a position to resume a lawful life at the end of any sentence. You are the owner of a house with your wife with a mortgage. Prior to this offending, you could be seen as a classic Australian migrant success story.

1. Your counsel submitted that you had good prospects of rehabilitation. He referred to your education, your good work record, and your ties to the community to indicate that your prospects ought to be regarded as good. You have no prior convictions.

1. You pleaded not guilty to the offence, and therefore, you have no insight into your offending. There is also no remorse. On the other hand, given your antecedents, family support and qualifications, I would regard your prospects of rehabilitation as at least reasonable.

1. Further, the fact that you are of prior good character carries only limited weight, given that it is well known that drug syndicates will utilise those of good character to undertake various roles in order to minimise any risk of apprehension. I have had regard to your prospects of rehabilitation in fixing a non-parole period.

1. In sentencing submissions, the learned Crown Prosecutor tendered a table of Court of Appeal cases, as well as the relevant Sentencing Snapshot. He noted that there is a rough correlation between the quantities of drugs trafficked and sentences imposed. He also noted that the completed offence carries the same maximum as an attempt. He submitted that authority such as Mokbel support the proposition that generally they should be treated the same, however, this does not mean that they should always be treated the same by way of in terms of moral culpability.[12] Also relevant is the question of the harm which may be inflicted where, in circumstances here, there was no actual drugs involved.

1. It is the case, as emphasised in a number of cases, that the quantum of drugs trafficked is an important consideration in assessing the seriousness of the offence.

1. Your counsel submitted that a significant matter in mitigation was that:

1. First, there never were any drugs the subject of the transaction, thus there could be no victim impact.

1. Second, the offence was entirely the product of a police operation and an agent provocateur. Thus, the matter differs significantly from a case where police tap into an existing supply chain or where police intervention stops drugs entering the market.

1. I am prepared to accept that it is a relevant matter in sentencing that no drugs would ever have entered the market, and that there was no actual shipment of actual drugs involved here. Given the potential size of the trafficking operation, namely 250 times a large commercial quantity, with a wholesale value in the tens of millions of dollars, I regard this, however, as having only limited weight.

1. The definition of trafficking is very wide. Your financial reward for your involvement cannot be more precisely determined than that the $10 000 found in your possession that was the subject of a very unsatisfactory explanation by you. I infer that this was at least part of the reward for your involvement. I infer that your involvement was for financial purposes, but whether you were to be paid more I'm unable to conclude one way or the other.

1. Your counsel specifically referred to the sentences imposed in the case of Barbaro & Ors which involved an extremely large importation of illegal drugs, namely 4.4 tonnes of MDMA.[13] The sentences varied depending on the role of each accused, and your counsel submitted that three of the accused, namely Pasquale Sergi,[14] Salvatore Agresta[15] and John Visser[16] were sentenced to periods of imprisonment which were well above what he regarded as an appropriate sentence here.

1. As that case was some years ago, and as the offenders were dealt with under Commonwealth legislation, I do not regard the sentences imposed as of much assistance in arriving at a benchmark.

1. The relevant Sentencing Snapshot was tendered. In particular, your counsel referred to the median sentence for this offence, which is 7 years, and sought to classify your offending as being in the mid-range. He submitted that any sentence should be single digits.

1. The chart provided by the learned Crown prosecutor during the plea is of only limited assistance.[17] The chart provides only brief information as to the various roles of the offenders, but however, does support the proposition that sentences in cases like this one are broadly related to the quantity of drugs trafficked.

1. However, given the amount of drugs in this case as a multiple of a large commercial quantity is significantly higher than any of the cases referred to in the chart, the Court is left without any real "yardstick".

1. In The Queen v Kilic,[18] the High Court referred to cases where a sentencing judge is sentencing an offender for a grave instance of the offence, but not so grave as to warrant the imposition of the maximum penalty. The Court said:

"[t]he requirement to have regard to the sentences imposed in [past cases] does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather, the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle".[19]

1. By analogy, the same applies here where the multiple of a large commercial quantity is orders of magnitude above the cases previously decided that were brought to the Court's attention.

1. There are, however, two recent cases discussing the principles of sentencing for trafficking offences that are relevant. In Stanley v The Queen,[20] the offender appealed against the severity of a sentence of eight years imprisonment for trafficking two and a half times a large commercial quantity of methylamphetamine. The offender, who pleaded guilty, was aged 23 at the time of the offence.

1. In dismissing the appeal against severity, the Court noted that the current sentencing practices for large commercial quantity cases are linked to the current sentencing practices for commercial quantity cases, which, at the time, were under review in Gregory.[21]

1. In Gregory, the Court of Appeal was dealing with a plea of guilty to a number of charges, the most serious of which was trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, over a period of some eight months. The offender was sentenced to eight years and six months imprisonment on that charge alone. The amount of drug trafficked approached a large commercial quantity. In dismissing the appeal, the Court indicated that current sentencing practices for the upper category of offences of commercial quantity cases are "plainly inadequate".[22]

1. The Court also indicated that the current sentencing practices for commercial quantity cases must increase, which will likely result, in turn, in a commensurate increase in the sentences for large commercial quantity cases.

1. There are, however, distinguishing features between this case and Gregory. As the Court of Appeal has indicated, each case before the courts will vary in relation to the quantity involved, the role of the offender, the duration of the offending, whether there is a plea of not guilty, and the prior convictions the offender.[23]

"As with any other category of offending, there is wide variation in the seriousness of [commercial quantity] trafficking offences, and in the culpability of the trafficker(s). Likewise, there is great variation in the role played by the offender, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range. For the reasons given earlier, variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence."[24]

1. Applying those comments to this particular case, even though this was an attempt at trafficking, over the short period of the charge you were significantly involved. Notwithstanding that the Court has been unable to fully identify the role that you were to undertake in any further distribution of the illicit drugs, applying the principles discussed in the cases which I have just referred to, any sentence must be substantially above sentences that have been imposed in the recent past for this offence, particularly in circumstances where you do not receive the benefit of a plea of guilty and have not shown any remorse.

1. It has been stated on a number of occasions that sentences in other comparable cases are not binding, but provide a 'yardstick' to consider a sentence in any particular case.

1. The Act operates on a quantity based scale. Here, you have been found guilty of trafficking 250 times the large commercial quantity. On any view, this is a substantial amount of illegal drugs that you attempted to traffick.

1. The value of the illegal drugs, should they have reached the market, would also have been substantial.

1. Here, I refer to my characterisation of your role as being a trusted intermediary in the trafficking operation. Although the period of your offending was only over a short period of three days, over that period you played a pivotal role in the proposed acquisition and movement of the drugs from the supplier to the unknown persons that were to take delivery from you. You were entrusted to engage with the potential supplier, Mika, procure and deliver the $100 000 payment, and then take delivery of the drugs and store them for a short time at your house.

1. The intensity of your involvement and its centrality to the operation over that period puts your moral culpability as high.

1. Your counsel relied on the cases of Jurkovic, Bozo v R[25] and R v Campanella[26] to submit that your sentence ought to be reduced on the grounds that this was entrapment. I regard both cases as distinguishable and prefer the consideration of cases involving purchases and sales to undercover police in Zandi.

1. In Jurkovic, the offender pleaded guilty and the full involvement of the police was clearer. There was a finding that the particular crime charged would only have occurred just because the police asked that an order be placed. Here, the nature of the activity that lead to your appearance on the police radar did not emerge, and as the Crown Prosecutor argued, you were committed to the offending by the time you were first approached by the undercover operative.

1. In Campanella, there was a finding by the sentencing judge that the offender came to commit a crime that he would otherwise not have committed as a result of police involvement with another individual.

1. Here I regard a consideration of the matters in Zandi as applicable. There, the Court discussed whether the seriousness of an offence was reduced by the fact that there were no real drugs involved. The Court said:

"The moral culpability was not at all diminished by the fact that there was no prospect of any harmful drug reaching the streets. [The offender] fully intended that the drugs would be obtained by him and disseminated into the community."

1. In Zandi, the Court referred to the decision in Mokbel. Here, Neave JA considered an argument that the sentencing judge had mischaracterised the offence of attempted trafficking on the basis that the police had undertaken a substitution of the drugs, and replaced them with an inert substance. Accordingly, it was submitted, the gravity of the offending should be reduced.

1. Neave JA (with whom Nettle and Tate JJA agreed), stated:

"The offence of trafficking covers both the doing of an act which comes within the definition of traffick and an attempt to do such an act and the same maximum penalty applies to both offences. This does not mean that the same sentence should always be imposed for an attempt to traffick, as for a completed trafficking offence. But...the offence is intended to deal with the potential harm caused by trafficking [or attempting to traffick] illicit drugs."[27]

1. After concluding that Mokbel was not a case in which an agent provocateur had pushed the offender into committing a crime, the Court dismissed the appeal.

1. In R v Peng Gao; R v Benjamin Lim,[28] in dealing with a case in which there was a substituted delivery, Rothman J noted that:

"[n]o principle establishes a general proposition that the fact, simpliciter, that the drugs are sold to undercover police and do not, therefore, reach the public, diminishes the culpability of the offending.

In such an undercover operation, it is beneficial to the community that the drugs are not able to be used. But that benefit is the result of the actions of law enforcement agencies, and not the result of any intention or action of the person charged. That there are no victims to such a sale may be a factor, like many others, that a sentencing judge takes into account, but for my own part, I would not generally consider it significant."[29]

1. In the words of Weinberg JA in Trajkovski v The Queen,[30] the "deleterious effects" of particular conduct is a potentially relevant matter depending upon the circumstances. This proposition has been repeated on a number of occasions,[31] including in Taumoefolau v The Queen.[32]

1. In Taumoefolau, the Court concluded its analysis of the relevant authorities by stating that:

"[t]he sentencing judge is entitled to gauge the criminality of the conduct by its potential consequences and by the intentions of the offender notwithstanding what he or she was in fact able to achieve."[33]

1. Here, while there were no 'deleterious effects', this must be weighed against the sheer quantum of the illegal drug you sought to traffick, and your involvement, although limited in time, but significant over the charge period, that I have discussed.

Is the possible confiscation/forfeiture of your residential property a matter to be taken into account?

1. You are the joint owner with your spouse of a property that is the subject of a mortgage. The property is in your joint names. Your share, after the mortgage, is worth $100, 886.50. I am satisfied that the property was lawfully obtained. As I have indicated, it carries a mortgage. The property was, however, used for the purpose of storing the six suitcases that contained the faux cocaine. The property, therefore, becomes an instrument of crime, and your share in the property will be subject to a confiscation application by the Director of Public Prosecutions. I take this matter into account as part of the impact the sentence will have on you, in that you will lose your half-share in the property. It will carry additional hardship particularly given the relatively modest means of you and your family.

1. The basic purposes for which a Court may impose a sentence are punishment, deterrence (both general and specific), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.

1. I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, so far as possible, offenders are rehabilitated and reintegrated into society.

1. The Courts have stated that in cases of large scale drug trafficking, general deterrence is the principal sentencing consideration. This is an economic crime and the penalties must reflect a risk/reward calculus. This applies notwithstanding that it is not appropriate to refer you as "principal" in this case.

1. The comments of Kaye J in Dawid v Director of Public Prosecutions are of general application:

"The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs."[34]

1. All those involved in the chain of distribution of drugs from its source to the ultimate consumer must face the risk that, when apprehended, substantial punishment will follow. This applies regardless, generally, of whether they are of prior good character and regardless of whether that, due to law enforcement activities, their ambitions to profit in the illegal trade are thwarted.

1. Your conduct is to be utterly condemned and a signal must be sent to others tempted to be involved in this illegal trade that the risk is not worth the reward.

1. Weighing all of the submissions made on your behalf, on the charge of attempting to traffick in a drug of dependence in a large commercial quantity, I sentence you to 15 years imprisonment.

100. I declare that you serve 11 years and six months before becoming eligible to apply for release on parole.

101. I declare 136 days served by way of pre-sentence detention, and order that it be noted in the records of the Court as time served under this sentence.

102. I will make an order, pursuant to section 464ZF of the Crimes Act,[35] that you provide a mouth swab to the authorities, having regard to the seriousness of this offence, and noting that this order is not opposed by your counsel.

103. I will also make a forfeiture order, sought pursuant to section 34(1) of the Confiscation Act,[36] for the van used in the commission of the offence; and I will make a disposal order, pursuant to section 78(1) of the Confiscation Act,[37] for the disposal of various items as agreed by the parties.

[7] See Haddara v The Queen [2016] VSCA 168, [45] - [55] (Redlich, Priest and Beach JJA) citing with approval R v Pidoto & O'Dea (2006) 14 VR 269; [2006] VSCA 185 (Maxwell P, Callaway, Buchanan, Vincent and Eames JJA).

[8] (1999) 199 CLR 270; [1999] HCA 54 (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ).

[9] The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 278.

[10] (2011) 211 A Crim R 37; [2011] VSCA 34 (Nettle, Neave and Tate JJA) ('Mokbel').

[11] [2015] VSCA 24 (Priest and Beach JJA) ('Zandi').

[12] See, eg, Mokbel [2011] VSCA 34; (2011) 211 A Crim R 37.

[13] See Barbaro v The Queen; Zirilli v The Queen (2012) 226 A Crim R 354; [2012] VSCA 288 (Maxwell P, Harper JA and T Forrest AJA) and Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 (French CJ, Hayne, Kiefel, Bell and Gageler JJ).

[14] Director of Public Prosecutions (Cth) v Karam & Ors [2013] VSC 133 (King J) ('Karam').

[15] Karam [2013] VSC 133.

[16] See R v Falanga and Visser [2014] VSC 306 (King J) and Visser v The Queen; Falanga v The Queen [2015] VSCA 168 (Weinberg, Priest and Beach JJA).

[18] (2016) 91 ALJR 131; [2016] HCA 48 (Bell, Gageler, Keane, Nettle and Gordon JJ).

[19] The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131, 138 at [22] citing Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 196 at [30] - [31] per Nettle JA (Ashley and Redlich JJA agreeing).

[20] Stanley (A Pseudonym) v The Queen [2017] VSCA 54 (Redlich and Ferguson JJ and Beale AJA).

[21] Gregory (A Pseudonym) v The Queen [2017] VSCA 151 (Maxwell P, Redlich and Beach JJA) ('Gregory').

[22] Gregory [2017] VSCA 151, [100].

[23] Gregory [2017] VSCA 151, [98].

[24] Gregory [2017] VSCA 151, [97].

[25] (1981) 6 A Crim R 215 (Fox, Kelly and Ellicott JJ) ('Jurkovic').

[26] (2004) 90 SASR 1; [2004] SASC 99 (Doyle CJ, Perry and Mullighan JJ) ('Campanella').

[27] Mokbel [2011] VSCA 34; (2011) 211 A Crim R 37, 47 at [43] (emphasis added).

[28] [2007] NSWCCA 343 (Basten JA, Latham and Rothman JJ).

[29] R v Peng Gao; R v Benjamin Lim [2007] NSWCCA 343, [47]-[48].

[30] (2011) 211 A Crim R 118; [2011] VSCA 170 (Ashley JA, Weinberg JA and Hargrave AJA).

[31] See, eg, Kapkidis v The Queen [2013] VSCA 35, [23] (Maxwell P and Redlich JA); Ibrahim v The Queen [2013] VSCA 227, [31] (Buchanan AP, Hansen and Priest JJA).

[32] Taumoefolau v The Queen (2015) 253 A Crim R 508; [2015] VSCA 221 (Hansen, Whelan and Beach JJA) ('Taumoefolau').

[33] Taumoefolau [2015] VSCA 221; (2015) 253 A Crim R 508, 519 at [36].

[34] Dawid v Director of Public Prosecutions [2013] VSCA 64, [35] per Kaye JA (Redlich and Whelan JJA agreeing) cited in Gregory [2017] VSCA 151, [83].