JUDGMENT OF: Estcourt J, Marshall AJ, Porter AJ

Criminal Law - Sentence - Relevant factors - Response to charges - Plea of guilty - Commonwealth offenders - Courts entitled to take into account utilitarian value of a plea of guilty.

Crimes Act 1914 (Cth), s 16A(2)(g).

Xiao v The Queen [2018] NSWCCA 4, followed.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Attempting to import a marketable quantity of a border controlled drug - Commonwealth offences - Pleas of guilty to three counts - Three different drugs in one transaction - Significant quantity of amphetamine intended for sale - Sentence of six years' imprisonment with a non-parole period of three years and six months not manifestly excessive.

First Respondent: Office of the Director of Public Prosecutions (Tasmania)

Second Respondents: Office of the Commonwealth Director of Public Prosecutions

Judgment Number: [2018] TASCCA 21

CAIN JEREMIAH DUNNING v STATE OF TASMANIA and THE QUEEN

1. The appellant, Cain Jeremiah Dunning, appeals against two sentences imposed upon him by Brett J on 18 April 2018.
2. The learned sentencing judge convicted the appellant of three counts of attempting to import a marketable quantity of a border controlled drug, contrary to ss 307.2(1) and 11.1(1) of the Criminal Code (Cth) and one count of trafficking in controlled substances, contrary s 12(1) of the Misuse of Drugs Act 2001 (Tas).
3. For the three crimes of attempting to import a marketable quantity of a border controlled drug, the appellant was sentenced to an aggregate term of six years' imprisonment to commence on 13 March 2018 with a non-parole period of three years and six months.
4. For the crime of trafficking in controlled substances, the appellant was sentenced to a term of 18 months' imprisonment. The learned sentencing judge ordered that the sentence be served concurrently with the Commonwealth sentence.
5. The appellant appeals on two grounds set out in an amended notice of appeal dated 15 May 2018. They are firstly, that the learned sentencing judge erred in tempering the credit given to the appellant for his early plea of guilty, because his Honour regarded the strength of the case against the appellant to have been overwhelming, and secondly that the sentences were manifestly excessive.
6. The particular error contended for in the first ground of the amended notice of appeal cannot amount to a dispositive ground of appeal unless, on an overall evaluation, either of the sentences were manifestly excessive. If they were not, then the asserted error adds nothing to the appeal. The ground of manifest excess was not pursued on the hearing of the appeal as to the State sentence and the first ground of appeal was only argued on the hearing in the context of the appeal against the Commonwealth sentence.

1. The legal principles applicable to appeals against sentence on the ground of manifest excess are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion.

1. The learned sentencing judge summarised the Crown facts stated on the sentencing hearing and drew relevant inferences as follows:

"The crime of trafficking was committed first in time. According to the particulars of the crime, contained in the indictment, you engaged in this activity between 23 December 2016 and 15 May 2017. The only facts which have been asserted in relation to this crime are extracts from text messages taken from your mobile telephone, together with other notations located during a subsequent search of your premises by police. It can be inferred from that material that you were selling the relevant drugs [MDMA and amphetamine] in relatively small quantities to end users of the product. It is impossible to determine the regularity of transactions or estimate the monetary benefit derived by you from this activity. Some of the material located on your mobile telephone suggests that, at the very least, you had aspirations to involve yourself in trafficking drugs at an extremely high level, and to derive an enormous profit from doing so. Your counsel asserts that such statements were nothing more than pure fantasy, and that you never operated at such a level, and there was never any realistic prospect that you would achieve those aspirations. In the absence of evidence to the contrary, I am prepared to accept that this was the case, but in light of what occurred thereafter in respect of the importation of drugs from overseas, I suspect that you genuinely held these ambitions, albeit without any real prospect of actually achieving them.

I intend to proceed on the basis that, over the period referred to in the indictment, you operated a relatively low level commercial trafficking operation, selling the drugs in question exclusively to individual consumers ...

In late June and early July of 2017, you attempted to import a significant quantity of illegal drugs from overseas. This attempt is the subject of the Commonwealth crimes to which you have pleaded guilty. I infer from the prosecution facts, and, in particular, the evidence available from a search of your computer, that you ordered the drugs from the website of businesses established in the Netherlands, which buy and sell such drugs. The material found by police suggests that you had at least visited such websites. You had also visited a website which provided software enabling you to mask your IP address. This suggests an attempt to keep your visits to the drug selling websites covert, and thereby avoid detection.

The drugs were sent to you by post. They were detected at the Australia Post facility at Melbourne airport on 6 July 2017. They were contained in a package addressed to you. There had been a rudimentary attempt to disguise the contents of the package. The package was described as 'car parts', and the drugs were contained within a rubber pool cover, wrapped in gift paper. There was, however, no attempt to disguise your identity as the intended recipient of the package.

The package contained the following border controlled drugs:

1. A substance with an aggregate weight of 902.6 grams, which, upon analysis, was found to contain 398 grams of pure amphetamine. The street value of this substance has been estimated at $451,300 if sold at $50 per 0.1 gram, or $270,780 if sold at $300 per gram.
2. 51 tablets containing MDMA. The total weight of these tablets was 20.9 grams, of which 9 grams were constituted by MDMA. The street value has been assessed at $1540.
3. A substance with an aggregate weight of 4.9 grams, which contained 2.7 grams of pure cocaine. The street value has been assessed at $1350.

It would seem apparent that your purpose in attempting to import these drugs, or, at least, the amphetamine, was to on sell them to others. There is no suggestion that any other person was involved in the importation. The evidence establishes that you ordered the drugs and traced the transit of the parcel online. After detection, the parcel containing the drugs was delivered to your house during the course of a controlled operation. In the belief that the parcel was being delivered to you in the normal course of the post, you accepted it and signed a receipt for its delivery. A subsequent search revealed that you had opened one of the bags, and hid the others in your house. The prosecution contention that the crime was conceived and executed by you alone, for the purpose of sale for your personal profit, has not been contested by your counsel. I am satisfied that your ultimate intention in importing the drugs was to step up your trafficking activity, and thereby increase your financial gain from the sale of drugs. I am satisfied also that had your plan not been interrupted by the detection of the drugs, you would have used them in that way.

Your counsel attempted to characterise your actions as the attempt of an amateur to satisfy a delusional ambition to achieve grandiose and unrealistic goals. He points to the amateurish aspects of your conduct, and the unrealistic tenor of the notes found on your mobile telephone. It is true that you made no real attempt to disguise your identity as the recipient of the package. On the other hand, there are aspects of your conduct which indicate a degree of sophistication. The purchase of the drugs through specialised and, probably, covert websites, your use of software intended to mask your computer transactions, and evidence which suggests that you paid for the drugs by digital currency, demonstrates that you had given some thought to protecting yourself from investigative scrutiny. In any event, the unrealistic nature of your long-term goals should be distinguished from what you hoped to gain as a result of your actual conduct. The reality is that you almost succeeded in bringing a very significant quantity of amphetamine into the country, with the intention of selling the drugs to others. You did this for the purpose of immediate financial gain. None of this was unrealistic and, but for detection, would have been carried into effect."

1. The learned sentencing judge made the following observations as to the appellant's personal circumstances:

"You are 22 years of age, and were 21 at the time you committed these crimes. You are currently unemployed and in receipt of Centrelink benefits. Your parents separated when you were very young. You spent most of your childhood with your father who was described by your counsel as a significant and long-term drug user. You were undoubtedly exposed to his use of illicit drugs throughout your childhood. Your schooling and home life were tumultuous, and you suffered some bullying at school. Not surprisingly, you were introduced to the use of illegal drugs at a very young age, and have developed drug using habits. I have already commented on your claim that your involvement in trafficking was motivated by your attempt to obtain drugs for your own use. You have some prior convictions. The only ones which I consider to be of any real significance in the context of the crimes with which I am dealing, are those for which you were convicted on 24 July 2014. Those convictions were for the minor drug offences of possession and use of a controlled plant and selling a controlled plant.

You have a child who is about to turn 2. You separated from the child's mother when the child was 4 months old. You have had care of her for several nights each fortnight. Your counsel does not claim that your separation from your child upon incarceration will cause hardship to her which is exceptional. The child will remain in the care of her mother. However, counsel submits that your relationship with her provides an incentive for you to reform. Hence, it is submitted that I should accept your claim that you now want to lead a law-abiding life and I should have confidence that upon your release you will do so. While I accept that your relationship with your child does provide an incentive to reform, she had been born by the time that you committed these crimes. I see little real evidence of a true commitment to rehabilitation beyond a desire to avoid the consequences which are now likely to flow from your conduct."

1. His Honour made the following comments on passing sentence:

"... you should certainly be given credit for an early plea of guilty although this must be tempered by the fact that the strength of the case against you seems to have been overwhelming.

In any event, in respect of all the crimes that you have committed, general deterrence must be the predominant sentencing consideration. That is particularly so in relation to the attempted importation of drugs. Some factors which are relevant to the need for general deterrence in this case include the quantity of the drug involved, in particular the amphetamine, the grave social consequences which would flow from the dissemination of that drug in that quantity, the difficulty of detecting the crime, which depended upon effective and comprehensive surveillance of the enormous volume of postal articles coming into the country, and your use of covert websites and digital currency to complete the transaction. Other factors which aggravate your culpability and suggest that some weight must be placed on personal deterrence are the fact that the importation was conceived and executed by you alone and for the purpose of your own financial gain. Apart from the fact that due to the diligence of the investigative authorities your attempt was unsuccessful, there is little else that mitigates your culpability.

Because all of the Commonwealth offences were constituted by one transaction, I intend to impose an aggregate sentence for those crimes. It is appropriate to impose a separate sentence in relation to the State crime of trafficking, although I will consider in a moment whether this sentence should be served concurrently or cumulatively with the Commonwealth sentence. The principles of totality require me to ensure that the overall effect of both sentences is neither unduly crushing nor disproportionate to the overall criminal conduct. Bound up in this consideration is your relatively young age and your stated desire to rehabilitate. The plea of guilty should also be given appropriate recognition.

1. You are convicted of the crimes to which you have pleaded guilty.
2. For the three crimes of attempting to import a marketable quantity of a border controlled drug, you are sentenced to an aggregate term of six years' imprisonment. That sentence will commence on 13 March 2018. Were it not for your plea of guilty, I would have imposed a sentence of 7½ years. I fix a non-parole period of three years and six months. The purpose of fixing this period is to provide for appropriate supervision upon your release from actual custody, given your stated desire to reform. The effect of fixing the non-parole period is that your service of this sentence will entail a period of actual imprisonment of not less than the non-parole period of three years and six months. If a parole order is made at the conclusion of that period, then this will entail a period of service in the community to complete service of the sentence. Any such period is called the parole period. If a parole order is made, the order will be subject to conditions and may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of a parole order, then the parole order may be revoked, and you would then be required to serve the outstanding portion of the sentence in prison.
3. For the crime of trafficking in controlled substances, you are sentenced to a global term of 18 months' imprisonment. There is a strong argument that this sentence should be served cumulatively upon the sentence imposed for the Commonwealth crimes, as it was separate conduct committed at a separate time. However, I intend to order that this sentence be served concurrently with the Commonwealth sentence. My reasons for doing so are to ensure that the overall sentence which you will be required to serve in prison is not unduly crushing, particularly having regard to your relatively young age. I have also taken into account my assessment that the commission of the Commonwealth crimes was, in effect, an extension and attempted intensification of the conduct which constituted the crime of trafficking. Accordingly, I order that the said sentence be backdated to commence from 13 March 2018. As this sentence will be completed before the expiry of the Commonwealth non-parole period, there is no need to make any further order pursuant to s 17(2) of the Sentencing Act 1997."

1. In Pham v The Queen [2016] VSCA 259, the Victorian Court of Appeal said at [12]:

"[12] The appellant in this case committed an offence contrary to s 307.2(1) of the Criminal Code 1995 (Cth). An oft-cited summary of the principles applicable to such offending is to be found in R v Nguyen, a decision of the NSW Court of Criminal Appeal which has been applied in Victoria on a number of occasions. The NSW Court of Appeal (Johnson J, with MacFarlan JA and R A Hulme J agreeing) relevantly said in R v Nguyen that:

(1) the offence of attempting to possess imported drugs is not inherently in a less serious category than that of drug importation;

(2) the quantity of the drug, though not determinative, is relevant to an assessment of objective seriousness of the offending;

(3) general deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;

(4) involvement at any level must attract a significant sentence otherwise the interests of deterrence are not served;

(5) factors personal to the offender such as good character are therefore given less weight than might otherwise be given." [Emphasis added.]

1. The relevant range of sentences for the Commonwealth crimes is to be discerned Australia wide and not solely within Tasmania. So much is clear from R v Pham [2015] HCA 39; 256 CLR 550 where French CJ, Keane and Nettle JJ said in their joint reasons at [17]-[19]:

"[17] The Director of Public Prosecutions submits that Maxwell P erred in holding that the respondent was entitled to expect that he would be sentenced in accordance with current sentencing practices in Victoria as opposed to the relevant range of sentences established across all States and Territories.

[18] That contention should be accepted. As Hili v The Queen made clear, where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.

[19] It follows that to approach the sentencing task on the basis that an offender is entitled to assume that he or she will be sentenced in accordance with current sentencing practices in the State or Territory where the offender is sentenced is an error that is likely to result in just the kind of inconsistency that the Australia-wide approach mandated by Hili is calculated to avoid."

1. In the present case, as to the Commonwealth crimes, the learned sentencing judge was provided with a number of comparative sentences drawn from decisions of Australian intermediate courts. They were Alavy v The Queen [2014] VSCA 25 (seven years); Mousavi v The Queen [2014] WASCA 174 (six years and eight months); AB v The Queen [2013] NSWCCA 333 (five years); Lindsay v The Queen [2012] NSWCCA 124 (eight years and six months); Ihoya v The Queen [2011] WASCA 46 (11 years); Brink v The Queen [2010] NSWCCA 217 (eight years and six months).
2. The most comparable of those cases was Alavy where the offender imported 397.8 grams of pure methylamphetamine (198 times a marketable quantity) estimated to have a value of between $228,000 and $495,000. The present case involved, as well as MDMA and cocaine, 398 grams of pure amphetamine which was almost 200 times a marketable quantity (a marketable quantity of amphetamine being 2.0 grams or more), and was estimated to have a marketable value of between $270,780 and $451,300.
3. An even more instructive series of comparable sentences can be found in the table set out in Pham v The Queen [2014] VSCA 204 at [44] (which table includes the case of Alavy).
4. In Pham v The Queen [2016] VSCA 259 the court said at (c):

"(c) Comparable cases and the range of available sentences

[22] Following the High Court's judgment in Pham, this Court has had occasion in Nam Son Nguyen v The Queen and again in Director of Public Prosecutions (Cth) v Thomas to further examine how comparable cases which inform relevant current sentencing practice may provide guidance as to whether a sentence may be described as manifestly excessive. In the reasons of Redlich JA in Nam Son Nguyen, with whom Tate and Whelan JJA relevantly concurred, which were adopted in Thomas, he said:

The need for the judge to be provided with what has been done in other (more or less) comparable cases was stressed in the joint reasons in Barbaro v The Queen. In Hili, the plurality referred to Director of Public Prosecutions (Cth) v De La Rosa and the use of information about sentences that have been passed in other cases, that history of sentencing establishing a range of sentences that have in fact been imposed. The importance of the sentencing patterns disclosed by that history were recognised by the plurality in Hili to be of considerable significance, in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. As the plurality state in Hili, Barbaro and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed. Past sentences provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.

Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases.

[23] Although the range of sentences disclosed by comparable cases does not determine the upper and lower limits of the sentencing discretion, one ordinarily expects that the sentence fixed will bear an appropriate relativity to comparable cases unless it has been concluded that the existing sentencing range is wrong. Thus the joint reasons of French CJ, Keane and Nettle JJ in Pham recognise that the 'degree to which the impugned sentence differs' from sentences in comparable cases will inform the question of manifest excessiveness or inadequacy and whether there has been a misapplication of principle.

[24] The appellant seeks to demonstrate that the sentence imposed upon him was manifestly excessive, by reference to 15 appellate decisions from every Australian jurisdiction dealing with comparable offending, selected from cases presented by the parties on the High Court appeal. These cases bear all of the following common attributes:

1. sentence imposed in the last five years;
2. for importing a border controlled drug;

1. in excess of the marketable quantity, but less than the commercial quantity;

1. being heroin, cocaine, methyl amphetamine or amphetamine;
2. involving only one type of drug;
3. against a person who pleaded guilty; and
4. who was a courier.

[25] The range of sentences disclosed by these 15 cases is between three years and six months' imprisonment at the lower end of the range to a sentence of nine years' imprisonment at the higher end. Only one had a head sentence higher than imposed on the appellant. The range of non-parole periods extended from a minimum term of two years' imprisonment to six years' imprisonment. It was contended that having regard to mitigating circumstances the judge ought to have fixed a sentence towards the lower end of the revealed sentencing pattern.

[26] The respondent submits that, apart from Youssef, the cases identified as comparable by the appellant are distinguishable and are inappropriate yardsticks against which his sentence should be measured. The respondent relies on some of the decisions set out in Attachment A to the reasons of Maxwell P in Pham 2014, namely, R v Mirzaee; Brink v The Queen; Mirza v The Queen; and R v Paliwala. The respondent further relies upon R v Mokoena. It is submitted that having regard to these comparable cases, the appellant's sentence was well within the range of available sentencing options." [Footnotes omitted and emphasis added]

1. Having regard to the comparable sentences before the learned sentencing judge in the present case and the table in Pham v The Queen [2014] VSCA 204 at [44], as well as the sentences canvassed in Pham v The Queen [2016] VSCA 259, I am of the view that the aggregate sentence of six years imposed by his Honour for the three Commonwealth crimes was well within range, notwithstanding the appellant's age, his plea of guilty and his other relevant personal circumstances. As the court said in Pham v The Queen [2016] VSCA 259 at [28]:

"28 Applying the observations in the joint reasons of French CJ, Keane and Nettle JJ in Pham, set out above, it cannot be said that the sentence here imposed differs to such a degree to sentences imposed in a number of the comparable cases so as to suggest that there has been a misapplication of principle."

1. Nothing in the table of cases forming part of the appellant's written submissions on the appeal causes me to take a different view either as to the head sentence or the non-parole period. I note that the appellant's counsel, Mr Arendt, quite frankly wrote in his written submissions that the comparative sentences in the table did not provide very much assistance primarily because the factual basis for the sentences varies greatly and there are not enough cases where the young age of the offender and a very early plea of guilty are part of the basis for the sentence.
2. Turning to the sentence for the State offence of trafficking, on any view a term of 18 months' imprisonment could not be said to be manifestly excessive having regard to sentences imposed in Tasmania by judges of this court in recent times (see Upston v Tasmania [2018] TASSCA 4; Le v Tasmania [2017] TASCCA 21; Farhat v Tasmania [2017] TASCCA 20; Cooper v Tasmania [2017] TASCCA 3; Roland v Tasmania [ 2016] TASCCA 20; Deakin v Tasmania [2016] TASCCA 19; DPP v Swan [2016] TASCCA 9; Stebbins v Tasmania [2016] TASCCA 6 and Billinghurst v Tasmania [2018] TASCCA 16).
3. Moreover, the fact that the learned sentencing judge ordered that the State sentence be served concurrently with the Commonwealth sentence clearly shows that his Honour paid proper regard to the totality principle. Indeed such a course might be considered to be lenient given that the relevant conduct was quite separate from that involved in the Commonwealth crimes, both in time and in substance. Indeed his Honour remarked, correctly in my view, that there was a strong argument that the State sentence should be served cumulatively upon the sentence imposed for the Commonwealth crimes, as it was separate conduct committed at a separate time.
4. Having regard to all of the foregoing considerations, it cannot be said, in my view, that the sentences were manifestly excessive. The non-parole period set on the Commonwealth sentence could have been less but it cannot be said to have rendered the overall sentence manifestly excessive. There is no presumptive starting point or set ratio for the period that a federal offender should actually serve in prison before being eligible for release on parole, as they would mask the consideration that must be given to the individual facts of a particular case: (see Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 520 at [43]; The Queen v Paull (1990) 20 NSWLR 427 at 435; The Queen v Bernier (1998) 102 A Crim R 44 at 49; The Queen v Viana [2001] NSWCCA 171 at [3] and The Queen v Bertilone [2009] WASCA 149, 231 FLR 383 at [41]). His Honour was well aware of the appellant's individual circumstances including his relatively young age and his stated desire to reform.
5. The learned sentencing judge discounted the appellant's Commonwealth sentence by 20% for what can only be seen, in my view in the context of his Honour's comments, as a discount for the utilitarian benefit of his early plea of guilty. In Xiao v The Queen [2018] NSWCCA 4 at [278] the New South Wales Court of Criminal Appeal held, after a lengthy review of conflicting authorities, that in sentencing proceedings governed by s 16A of the Crimes Act 1914 (Cth), a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing as the legislature intended the encouragement of guilty pleas, not only to provide evidence for remorse or contrition, but to assist in the administration of justice.
6. In Xioa at [280] the Court said:

"Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error."

1. The learned sentencing judge in specifying that the effective discount he was allowing was 20%, and by commenting that the discount was to be tempered by the apparently overwhelming nature of the case against the appellant, was saying, as I apprehend it, no more than that the discount was in respect of the utilitarian benefit of the appellant's plea of guilty, that is to say, in recognition of the assistance of the plea in the administration of justice.
2. The discount of 20% was an appropriate discount in my view, however regarded. It must be remembered that the learned trial judge observed that he saw little real evidence of a true commitment to rehabilitation on the part of the appellant beyond a desire to avoid the consequences which were to flow from his offending. One might infer from that observation and the lack of any reference by his Honour to remorse or contrition that the discount was purely for a non-sentencing purpose. In Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357, McHugh J said at [74]:

"[74] Nor is the instinctive synthesis approach inconsistent with awarding a discount for some factor, provided that discount relates to a purpose distinct from a sentencing purpose. The distinction between permissible and impermissible quantification of 'discounts' on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice."

1. I should also observe that, in my view, as a starting point, a sentence of seven and a half years would have been a severe sentence but would not have been of itself manifestly excessive if imposed after a trial at which the appellant had been found guilty by a jury.
2. I conclude that the sentences were not manifestly excessive and that it follows that the learned sentencing judge cannot be regarded as having erred in any identifiable or unidentifiable way. Both grounds of appeal should fail.

1. I agree with the reasons for judgment of Estcourt J.

1. I have read the reasons for judgment of Estcourt J, and Marshall AJ's agreement with those reasons. I have reached the same conclusion about the disposition of the appeal as my colleagues, but I want to make some additional remarks about a number of aspects. I will also specifically address ground 1 which relates to the way in which the sentencing judge approached the weight to be given to the appellant's pleas of guilty. I respectfully take a different view about the ground, although as is apparent, the outcome is not affected.
2. The facts, the appellant's personal circumstances as noted by the sentencing judge, and his Honour's comments are set out in the judgment of Estcourt J. There is no need for me to repeat them. I should however, make clear the basis on which the appeal was argued. The sentence imposed for the Commonwealth offending was one of six years' imprisonment, with a non-parole period of three years and six months. For the State trafficking charge, the appellant was sentenced to 18 months' imprisonment to be served concurrently. The notice of appeal originally filed only named the State as the respondent, but it seeks an order quashing "the sentence" imposed on what is specified as all the offences for which the appellant was sentenced.
3. In the original notice, the sole ground of appeal was that "the sentence" was manifestly excessive. In its amended form, that became the second ground. The Crown in right of the Commonwealth was made a respondent by order of a judge on 12 September 2018, and as argued, the appeal relates only to the separate Commonwealth offending. The State Director of Public Prosecutions, although represented at the hearing, did not seek to be heard. The State's interests only become directly affected if this Court were to uphold the appeal and re-sentence the appellant. In that event, the Court has been advised that the State again does not want to be heard. For those reasons, my reference to the "sentence" is to the sentence for the Commonwealth crimes, unless otherwise made clear.

1. The ground alleges error on the part of the sentencing judge "in tempering the credit given to the appellant for his early plea [sic] of guilty because the strength of the case against him seems to have been overwhelming". The wording of the ground is taken from the sentencing judge's comments. After observing that he saw little real evidence of a true commitment to rehabilitation beyond the desire to avoid the consequences which are now likely to flow from the appellant's conduct, his Honour said:

"However, you should certainly be given credit for an early plea of guilty although this must be tempered by the fact that the strength of the case against you seems to have been overwhelming."

1. In the context in which his Honour was speaking, the reference to "early plea of guilty" is a reference to the pleas of guilty to the four crimes. The word "plea" was used in the debate in this Court, no doubt as a shorthand means of reference. In fact, the appellant's pleas of guilty were entered at two different times. Different considerations might arise in respect of each stage.
2. On the three Commonwealth crimes of attempting to import a marketable quantity of a border controlled drug, the appellant pleaded guilty on 13 December 2017 and was committed to the Supreme Court for sentence. That was his very first appearance, and for that reason the pleas can be accurately and unequivocally described as "early". On the same day, the appellant pleaded not guilty to the State crime of trafficking in a controlled substance, and was committed for trial. An indictment for that crime was filed on 20 February 2018. The appellant did not seek preliminary proceedings under s 331B(2)(a) of the Criminal Code. All matters came before the sentencing judge on 13 March, and the appellant pleaded guilty to the indictment. That plea might be described as "early" when compared to the date of filing of the indictment.
3. Before directly dealing with the ground of appeal, there is a related point that I would like to address. The point concerns s 16A(2)(g) of the Crimes Act 1914 (Cth) and Xiao v The Queen [2018] NSWCCA 4, a case to which Estcourt J has referred. The section requires a court, in determining a sentence, to take into account the fact of a plea of guilty. Although not dealing with Commonwealth offences, the reasoning of the plurality in Cameron v The Queen [2002] HCA 6, 209 CLR 339 created a debate about the integrity of a discount based on the utilitarian value of a plea of guilty. At [13]-[14], Gaudron, Gummow and Callinan JJ said that the rationale for taking a guilty plea into account, so far as it depends on factors other than remorse and acceptance of responsibility, should be expressed in terms of a willingness to facilitate the course of justice, and not on the basis that the plea has saved the community the expense of a contested hearing.
4. Later, in Barbaro v The Queen [2014] HCA 2, 253 CLR 58 - a Commonwealth sentencing case - French CJ, Hayne, Kiefel and Bell JJ commented to the effect that the utilitarian value can of itself underpin a discount for a plea of guilty, at least in the case of "very long and costly trials". Of course, utilitarian benefit is an objective issue, whereas remorse, acceptance of responsibility and a willingness to facilitate the course of justice are subjective considerations.
5. As Estcourt J has noted, in Xiao, the Court held that s 16A(2)(g) enables a sentencing court to take into account the utilitarian value of a plea. The Court's detailed reasons include an explanation of Cameron: see [248]-[253]. The same approach to the effect of a plea of guilty to Commonwealth offences as adopted in Xiao, has also been authoritatively adopted in Victoria: Director of Public Prosecutions (Cth) v Haidari [2013] VSCA 149; Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237. Appellate courts in South Australia, the Australian Capital Territory and the Northern Territory, have adopted the subjective approach[1], while the situation in the other jurisdictions seems unclear[2].
6. The issue, insofar as it relates to Commonwealth offending, has not been specifically addressed in this State.[3] Before the sentencing judge, Crown counsel accepted the utilitarian benefit approach, citing Xiao. In order to dispel any doubt about the operation of s 16A(2)(g) of the Crimes Act, my view is that having regard to the extensive analysis carried out in Xiao and the persuasive reasoning, Xiao (along with the Victorian authorities), should be expressly followed. In relation to State offences, on several occasions this Court has endorsed the notion of credit being given because of the utilitarian benefit from a plea of guilty: see for instance: Dennison v Tasmania [2005] TASSC 54 at [14]; Pickett v Tasmania [2014] TASCCA 1 at [24]; Ilic v Tasmania [2009] TASSC 94 at [18]; Butt v Tasmania [2018] TASCCA 3 at [57]. The reasoning in Xiao clearly supports this position.
7. Returning to the ground itself, Estcourt J has said that in specifying the effective discount of 20%, and by commenting that the discount was to be tempered by the apparently overwhelming nature of the Crown case, the sentencing judge was saying no more than that the discount allowed was in respect of the utilitarian benefit of the plea, that is to say recognition of the assistance of the plea in the administration of justice. I accept that this is a possible interpretation of what his Honour said. That is, his Honour limited the discount to the utilitarian benefit, and, by implication, excluded any additional benefit that may have arisen from subjective considerations - the plea being taken as evidence of remorse or acceptance of responsibility, or a willingness to facilitate the course of justice.
8. However, in my respectful view, a literal and reasonable reading of the sentencing judge's comments, suggests that his Honour, as argued by the appellant, reduced the discount because of what is often described as bowing to, or accepting, the inevitable. It is difficult to avoid this implication from the words used - that credit for an early plea "must be tempered" by the fact of the apparently overwhelming strength of the prosecution case. That interpretation is supported by the structure and terms of written submission given to his Honour by the Crown. In the document, after acknowledging that the utilitarian benefit of the plea should be taken into account, Crown counsel immediately went on to submit that the case was strong, and the plea "must be seen, at least in part, as 'recognition of the inevitable'."
9. If that was his Honour's approach, then it is with respect, erroneous. It is so for the reasons explained by Geason J in Director of Public Prosecutions v Broad [2018] TASCCA 5 at [27]- [31]. At [30], his Honour said:

"A utilitarian discount does not have regard to the strength of the prosecution case: R v Sutton [2004] NSWCCA 225; and nor does it relate to the issue of remorse; R v MAK, R v MSK [2006] NSWCCA 381. That is because the benefit to the administration of justice occurs by reason of the plea, simpliciter. It accrues whether the offender is remorseful or not. Thus when it is said that a plea of guilty attracts a discount, it is in terms of the benefit to the administration of justice; the utilitarian benefit. That benefit is applied after the process involved in arriving 'at a single result' described in Wong v R [2001] HCA 64, 207 CLR 584 at 611 [75]. It is applied for a non-sentencing purpose: Markarian v The Queen [[2005] HCA 25, 228 CLR 337 at [74] per McHugh J]."

1. In Sutton at [12], the New South Wales Court of Criminal Appeal made it clear in no uncertain terms that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of a plea of guilty: "The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence."
2. Nonetheless, any error in approach on the part of the sentencing judge is immaterial. I say that because I am not persuaded that the discount of 20% is outside the range reasonably available to the sentencing judge were the discount given for the utilitarian benefit, unaffected by considerations of the strength of the case: see Broad (above) per Geason J at [36]-[37], and the cases cited. In any event, in the absence of any requirement to fix and specify a discount, the adequacy of the quantum of any discount is really subsumed within the ground that the sentence was manifestly excessive.

1. While not abandoning argument in respect of the head sentence of six years, in his oral submissions counsel for the appellant told the Court that the focus was primarily on the non-parole period of three years and six months. Counsel accepted that the crimes of importing a marketable quantity of a border controlled drug were serious, and that general deterrence was a primary sentencing consideration. He submitted however, that there were a number of matters that "need to be balanced against" that factor.
2. The matters referred to include the following:
   • the appellant's youth;
   • the contribution of immaturity to the offending;
   • the pleas of guilty should be taken as evidence of contrition and remorse, there being nothing to suggest otherwise;
   • the lack of any relevant prior convictions;
   • the absence of any evidence that the appellant knew what the actual quantity of the drugs were in their pure form, or that he knew or believed the street value was in accordance with the estimates given.
3. As to the appellant's "youth", it is correct that he can be categorised as a "youthful offender": see Mayne v White [2007] TASSC 7 at [5] and the cases there cited. That youth is generally to be considered a significant factor is based on the rationale that ill-considered and immature decision-making is part of the make-up of youthful offenders. The factor does have its limitations. The greater the age the less the mitigating force. More particularly, although rehabilitation is usually far more important than general deterrence in the case of a youthful offender, the offending might be of such a nature that general deterrence and denunciation are at least equally important: R v Tran [2002] VSCA 52, 4 VR 457 at [14]; R v AEM [2002] NSWCCA 58 at [97]- [98].
4. Counsel submitted that immaturity in fact played a part in the offending, identifying the notes from late 2016 found on the appellant's 'phone. In those notes, the appellant speaks of becoming an extraordinarily wealthy international drug figure. His then counsel described them as "delusional", written under the influence of drugs. The sentencing judge said that in the absence of evidence to the contrary he was prepared to accept that was the case, and that there was never any realistic prospect that he would achieve those aspirations. His Honour later said that in light of what happened after the notes were written, he suspected the appellant genuinely held the ambition but with no real prospect of fulfilling it, and that the unrealistic nature of his long goals should be distinguished from what he hoped to gain from his actual conduct. There is little in this aspect that advances the appellant's case. Even if it is accepted that the notes demonstrated immaturity in fact, that is subsumed within the "youthfulness" factor, and no exception can be taken to the sentencing judge's remarks.
5. For the appellant, the further point was made in this context that there was little evidence of sophistication in what the appellant did. The high point of this is undoubtedly the fact that the appellant had the drugs addressed to himself at his home. It was not challenged however, that the appellant had used his mobile 'phone to arrange payment with Bitcoin, and the sentencing judge was entitled to draw the inferences he did about the use of the 'masking' software found on the appellant's tablet, and the covert conduct engaged in.
6. No doubt the appellant's age is a relevant consideration but while still qualifying as a youthful offender, he was approaching the end of the time for which such a claim can be made. Primarily though, the factor is not of significant weight given the need for general deterrence and denunciation, along with his offending history, to which I will return. Nontheless, rehabilitation remained a factor to be taken into account.
7. As to the pleas of guilty evidencing contrition and remorse, the fact that the appellant was contrite and remorseful was not put to the sentencing judge, nor was he invited to draw that inference from the pleas of guilty. There is nothing in any of the material put before his Honour which would justify the inference that the appellant was genuinely contrite for what he had done.
8. Allied to the question of the appellant's age, is the fact of his offending history. In identifying the appellant's lack of "relevant prior convictions", I understood counsel to be adding a qualification that the appellant lacked relevant prior convictions of any significance. On 24 July 2014, the appellant was dealt with on charges of possessing a controlled plant, using a controlled plant and selling a controlled plant. By way of a global sentence convictions were recorded, and the proceedings were adjourned for a period of nine months upon the appellant undertaking to be of good behaviour and commit no offence under the Misuse of Drugs Act 2001 during the period of the adjournment.
9. The conduct the subject of the trafficking charge to which the appellant pleaded guilty commenced in late December 2016, some eight months after the end of the period of the undertaking. While the magistrate seems to have taken a lenient view of the act of selling, the involvement in the court process and being subject to the undertaking did not deter the appellant from further selling activities amounting to trafficking. That is a factor weighing against the appellant and one which cannot be overlooked.
10. I turn to the submissions concerning the absence of evidence in relation to the appellant's state of mind concerning the actual quantity of drugs in their pure form, and the Crown estimate of value. I note that the Crown asserted to the sentencing judge that the appellant had knowledge of the "amount of the drug to be imported", and stated the estimated street values. These matters were not challenged either by way of a dispute raised due to lack of proof, or the converse being asserted as a fact.
11. As to weight, it was open for his Honour to be satisfied beyond reasonable doubt that the appellant had arranged for the importation of quantities of the three drugs each weighing roughly twice what the pure amount proved to be - 906.6 grams overall weight to pure weight of 398 grams in the case of the amphetamine. His Honour was entitled to proceed on the basis that the appellant knew or expected the purity to be of the order it was. In any event, it is worth noting that s 307.2(3) of Criminal Code (Cth) imposes absolute liability for the element of the offence specified in 307.2(1)(c): importing a "marketable quantity". Further, the fault element in relation to the nature of the substance being imported - s 307.2(1)(b) - is recklessness: s 307.2(2). Recklessness as to the nature of the substance is not a mitigating factor but it means the absence of the aggravating fact of intention or knowledge: Lau v The Queen [2011] VSCA 324 at [25]- [26]. It follows that being reckless at how much of pure substance is imported would not seem to be mitigatory.
12. Further, in Wong v The Queen [2001] HCA 4, 207 CLR 584, the High Court was dealing with a "guidelines" judgment for the crime of being knowingly involved in the importation of a narcotic, contrary to s 233B of the Customs Act 1901 (Cth). In holding that it was wrong to treat the weight of the drug as the chief factor in fixing the sentence, Gaudron, Gummow and Hayne JJ said:

"[67] The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities [s 235 of the Customs Act]. No doubt, within both of those categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?

[68] It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

[69] It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders."

1. Accordingly, assuming the sentencing judge could be satisfied that the appellant did not know the actual quantity of drugs in their pure form, that would have little weight given that the appellant was the sole offender acting on his own behalf. The size of the importation remains a relevant factor to which the sentencing court must still have regard in determining the objective seriousness of the offence: R v Lee [2007] NSWCCA 234 at [23]- [24].
2. Nor is the appellant assisted greatly by the fact that he might not have known that the street value of the drugs was in fact in line with the asserted Crown estimates given. That state of mind might be relevant to his anticipated return, but in the overall context, it has little weight. The sentencing judge was entitled to have regard to the unchallenged potential value.
3. There are some features of the appellant's personal circumstances that, if not carrying some mitigatory weight, at least serve to explain his offending to an extent. He spent most of his childhood with his father, who was "a significant and long-term drug user". As the sentencing judge acknowledged, the appellant was undoubtedly exposed to his father's use of illicit drugs throughout his childhood, and he was introduced to the use of illegal drugs at a very young age. His school and home life were tumultuous and he developed drug using habits himself. That he was brought up in this environment and seems to have lacked any real stabilising or moderating influences in his life is of some significance.
4. The sentencing judge accepted that the State trafficking charge involved small transactions to end users, to support his habit. Counsel for the appellant pointed to the sentencing judge's statement that the appellant's purpose in the importation of the drugs, "or at least the amphetamine" was to on-sell to others. Counsel suggested that his Honour accepted that the small amounts of cocaine and MDMA (2.7 grams and 9 grams respectively) were not to be on-sold. But this was not asserted to his Honour to be the case, and the appellant bore an onus of proving that he neither intended, nor believed that another intended, to sell any of the relevant drug: Criminal Code, s 307.2(4). In this respect, His Honour later said he was satisfied that the ultimate intention in importing the drugs was to step up the trafficking activity and thereby increase financial gain from the sale of drugs, and that had the plan not been interrupted by the detection of the drugs, the appellant would have used them in that way.
5. Crown counsel supplied the sentencing judge with details of a number of appellate cases said to be "comparative", covering the period 2010 to 2014. The cases variously involved methamphetamine, methamphetamine and heroin. In four cases, the offender had no prior convictions. Of the other two, one offender had a very lengthy criminal history including drug and dishonesty offending. The lowest sentence was one of five years' imprisonment with a non-parole period of two years and six months. That involved 400 grams of cocaine. The highest sentence related to 533 grams of methamphetamine, and was 11 years' imprisonment with a seven year non-parole period for an offender with prior convictions.
6. I will later deal with the use of such material, but note here that a reference to Pham v The Queen [2014] VSCA 204 might have been more informative. At [44], Maxwell P set out a list of 32 appellate cases involving relevant Commonwealth offending. (Two of those were among the six provided to the sentencing judge in this case.) The criteria for selection of those cases were that the offender's role was that of courier or recipient, pleaded guilty, and had no, or no relevant prior convictions. Generally, five substances were involved, the type and relevant marketable quantities of which under the Criminal Code Regulations 2002 (Cth) are as follows: Amphetamine and methamphetamine - 2 grams, cocaine - 2 grams, heroin - 2.0 grams and MDMA - 0.5 grams. There is no need to go beyond noting the marketable quantities. That is because the regime is a quantity based one, and there is no room for a judicially constructed assessment of relative harmfulness: Adams v The Queen [2008] HCA 15, 234 CLR 143 at [3], [10].
7. Of the 32 cases, the lightest sentence was two years' imprisonment with a non-parole period of 10 months, a case that involved 488.76 grams of pseudoephedrine, a border controlled precursor for which the marketable quantity is 3.2 grams. The severest penalty was 10 years' imprisonment with a non-parole period of five years, where 1.473 kilograms of heroin was involved.
8. In Pham v The Queen [2016] VSCA 259 (the same case on remitter from the High Court), 15 appellate decisions were put before the court using the same criteria, but with the addition that the sentence had been imposed in the last five years. Only seven of those were not included in the Pham 2014 list; one of those seven was included in the sentencing judge's bundle. Of those seven, the lightest sentence was one of four years' imprisonment with a non-parole period of two years and six months; (15 months' imprisonment was imposed on a charge of trafficking, the structure of the orders making it a total head sentence of four years and three months). The heaviest penalty was eight years' imprisonment with a non-parole period of five years. There are two such sentences: one for a case that involved 423.6 grams of heroin; the other 1,870 grams of cocaine.
9. Counsel for the appellant put before this Court another list of 25 sentences for the offence of importing a border controlled drug, but conceded they were not of much assistance given the wide variations in the facts. Fourteen of those cases were sentences at first instance; the remainder were the subject of appellate decisions. Many of those related to offenders with a low level of involvement and no prior convictions. The most lenient sentence is one of two years and six months' imprisonment with the offender released forthwith on recognizance release order. The quantities were relatively small, 58.1 grams of methamphetamine and 20 grams of MDMA, and the offender received the drugs to pass on to someone else. At the other end of the scale, the most relevant one involved a sentence of nine years and six months' imprisonment with a non-parole period of seven years relating to 335 grams of methamphetamine and 27 grams of heroin. The offender had prior convictions.
10. In R v Pham [2015] HCA 39, 256 CLR 550, the High Court, by reference to its earlier decisions in Hili v The Queen [2010] HCA 45, 242 CLR 520 and Barbaro v The Queen (above) restated the proper approach for separate jurisdictions when sentencing Commonwealth offenders, and the use of comparable cases throughout the Commonwealth. A summary is as follows. The approach to sentencing such offenders needs to be largely the same throughout the Commonwealth. The point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is two-fold, it can and should provide guidance to the identification and application of relevant sentencing principles, and second, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence. It does not mean that the range of sentences so disclosed is necessarily the correct range, or otherwise determinative of the upper and lower limits of the sentencing discretion.
11. At par [28] French CJ, Keane and Nettle JJ said (omitting references):

"... [I]t is appropriate to re-emphasise the following:

(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

(2) The consistency that is sought is consistency in the application of the relevant legal principles.

(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.

(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.

(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.

(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.

(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle."

1. Their Honours said that where decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as "yardsticks" that may serve to illustrate (although not define) the possible range of sentences available: [29]. See also Bell and Gageler JJ at [46]-[48]. The overarching concern is to promote comity between courts and consistency in treating like cases alike across the nation. Accordingly, comparable cases provide guidance and will "inform the question of manifest excessiveness or inadequacy": Pham 2016 (above) at [23]. To be of any real assistance, the material must be of such a scale and nature to enable a pattern or range to be clearly discerned in relation to comparable offending. It is trite that in the end, a court is to make its own assessment based on all the facts, circumstances and sentencing factors.
2. What is plainly apparent is that as a matter of principle, in determining a sentence for the offence of importing a border controlled drug, general deterrence and denunciation are of considerable weight, and in the main must overshadow mitigatory facts and circumstances including a lack of prior convictions. Strong punitive responses are the norm. The reasons for this are obvious. "[There is] the difficulty of detecting the offence and [there are] great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight; the latter, that stern punishment will be warranted in almost every case": Wong (above) at [64]. It is quite clear that the adoption of this approach results in the heavy sentences involved in the cases in the various lists to which I have referred. The approach in principle implicit in the appellate decisions should be followed. The sentences to which I have referred provide guidance by way of a discernible range in relation to comparable offending. Of course, the Pham lists involve offenders who were mere couriers or recipients, and the appellant's greater role must not be overlooked in that exercise.
3. In the end, I am not persuaded that the sentence for the Commonwealth offending was outside the range of sentences reasonably available in the exercise of a sound discretionary judgment. The non-parole period of 58.33 per cent of the head sentence is well within the available range. (It has been noted that non-parole periods for Commonwealth drug offences are ordinarily in the order of 60 to 66.66 per cent: R v Mokoena [2012] [2009] QCA 36 at [10].) I acknowledge that the sentence can be seen as a heavy one. The starting point of seven years and six months was relatively high. In my view the sentence could justifiably have been less, but that is not to the point. That is sufficient to dispose of the appeal. In conclusion however, I note that the sentencing judge was quite entitled to take the view he did in ordering the two sentences to be served concurrently. I merely observe that given the chronology of the offending, if a lesser sentence had been imposed for the Commonwealth offending, the case for that sentence being made cumulative to the State sentence might have been stronger. Of course, the principle of totality would have arisen, the overall effect of the aggregate needing to be just and appropriate.
4. I would dismiss the appeal.

[1] R v Constant (No 2) [2017] SASFC 36 at [18]-[20]; R v Harrington [2016] ACTCA 10; R v Evans [2013] NTCCA 9.

[2] In Western Australia compare Bahar v The Queen [2011] WASCA 249 and R v Combo [2015] WASCA 34. As to Queensland see R v Nitu [2012] QCA 224 at [38].

[3] See however, Henderson v Tasmania, Henderson v The Queen [2012] TASCCA 12, 21 Tas R 448 at [4], [18]-[20].