JUDGMENT OF: Blow CJ, Estcourt J and Marshall AJ

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Trafficking in crystal methylamphetamine and trafficking in firearms - Sentence of six years' imprisonment with non-parole period of three years - Not manifestly excessive.

Appellant: A G Melick SC, R Broomhall, P Slipper

Judgment Number: [2017] TASCCA 20

1. I agree that this appeal should be dismissed, for the reasons stated by Estcourt J.
2. In those reasons at [41] his Honour said that the appellant "could claim no mitigating circumstances". I take that comment to refer to the circumstances of the offending, but not to the appellant's personal circumstances. A number of aspects of the appellant's personal circumstances were relied upon as mitigating. I would like to say a little about those circumstances.
3. First of all, the appellant had no prior convictions. He had apparently led a blameless life until committing the crimes in question in his mid-thirties. However he committed a number of offences of dishonesty and driving offences in New South Wales in 2015, after having been released from bail on these charges. As a result, he spent a little over five months in custody in New South Wales from 1 December 2015 to early May 2016.
4. Secondly, before developing a drug problem he had led a responsible life, conducted a panel beating business with several employees, and made substantial annual donations to charities.
5. Thirdly, the learned sentencing judge was obliged to take into account the totality principle, and did so. In practical terms, that meant that, because of the months spent in custody in New South Wales, the sentence for the crimes in question had to be a little more lenient than would otherwise have been appropriate. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.
6. Fourthly, there was the appellant's offer to provide assistance to the police. However this was a fairly insignificant factor. The learned sentencing judge rightly took it into account only as a matter explaining why the appellant was held in protective custody. The appellant offered to assist the police in relation to their investigations relating to his co-offenders, but the offer was not taken up, his co-operation was apparently not needed, and he did not give evidence against anyone else. The learned sentencing judge was told that he was a registered informer in New South Wales. He was provided with a Tasmania Police briefing note dated 18 October 2013 which recorded that the appellant had stated that he would be willing "at the conclusion of all his own matters" to work with police in Sydney in relation to the source of supply of the crystal methylamphetamine and the whereabouts of some firearms. His counsel told the learned sentencing judge that he did provide information to the police in New South Wales. However his Honour was not told what information was provided, and was not told anything to the effect that the provided information had been of any use. In those circumstances, it was not appropriate for his Honour to place any weight at all on what was said about the provision of information to the New South Wales police.
7. Fifthly, the learned sentencing judge was told that the appellant was in protective custody in the Hobart Remand Centre, that he was under constant protection there because the custodial authorities believed that his life was in danger, and that he had been assaulted and threatened in the prison. No submission was made as to how long he was likely to remain in protective custody. In a statement by the appellant read to the learned sentencing judge by his counsel, he said, "I am now in Hobart Remand Centre under protection. I can't see anyone or make friends because of it." No greater detail was provided as to the consequences of his being in protective custody. The learned sentencing judge took into account the fact that he was being held in protective custody and that, if that continued, it was "likely to make prison more onerous for him". There is no reason to think that his Honour gave this factor too little weight.
8. A number of other factors were relied upon as mitigating circumstances, but correctly treated by the learned sentencing judge as not being mitigating at all. The appellant suffers from a congenital spinal condition which results in considerable pain. However there was no reason to think that that condition could not be appropriately managed whilst the appellant serves his sentence. He will not be allowed to take Oxycontin whilst in custody, but it would be inappropriate for him to continue to take that drug because he became addicted to it. There was a delay of well over three years between the appellant's arrest and his trial, but that also is a neutral factor. The delay resulted from, amongst other things, the complexity of the Crown case, the imprisonment of the appellant in New South Wales, the level of resourcing of the prosecuting authorities, and the listing of the trial at a time when each accused's counsel of choice was available. The appellant has serious literacy and numeracy problems. However, despite those problems, he was not handicapped in his drug trafficking activities in any significant way. One of his co-accused, Mr Bechara, took on something of a leadership role, but the learned sentencing judge took that into account.
9. Having regard to all these circumstances and to the sentence imposed, it cannot be said that the learned sentencing judge gave undue weight to any mitigating circumstance.
10. A surprising aspect of this appeal is that the appellant's counsel made a submission about disparity without applying to amend the notice of appeal to include a ground of appeal relating to that issue. It was submitted that there was an inconsistency between the sentence imposed on Mr Bechara and that imposed on the appellant that gave rise to a justifiable sense of grievance. Counsel relied on Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606. I agree with Estcourt J that the appellant could not have a justified sense of grievance.
11. Mr Bechara was sentenced by the learned sentencing judge to 6½ years' imprisonment, with a non-parole period of 3 years 9 months. His sentence was 6 months longer than the appellant's sentence. His non-parole period was nine months longer.
12. The principal factors weighing in favour of Mr Bechara receiving a heavier sentence were as follows:
    • To some extent, the appellant was subject to the direction and authority of Mr Bechara. However he played a positive and independent role in the trafficking business and commonly acted independently of Mr Bechara.
    • Unlike the appellant, Mr Bechara had some serious prior convictions. His record commenced when he was a youth. He was in prison from 2000 until 2010 for crimes that included supplying a commercial quantity of a prohibited drug, larceny, and two counts of discharging a loaded firearm in company with intent to cause grievous bodily harm.
    • Mr Bechara was sentenced not just for the same crimes that the appellant committed, but also on a charge of perverting justice. Mr Bechara and Mr Farhat were arrested at the Launceston airport when they were about to fly to Sydney, having checked in suitcases containing four handguns, some ammunition, and about $152,000 in cash. Mr Bechara was permitted to make a phone call to a friend. He phoned the woman he lived with, told her he had been detained, and asked her to contact another co-offender, Mr Ivey, to request him to go to a rented unit that they had been using, and to "get from it what he had to". That was the attempt to pervert justice. It was not successful.
    • The totality principle was not applicable to the sentencing of Mr Bechara.
    • It was not suggested that Mr Bechara was in any danger or that he needed to be held in protective custody.
13. However there were mitigating circumstances relevant to the sentencing of Mr Bechara that were not present in the appellant's case, as follows:
    • Mr Bechara pleaded guilty. It was a very late plea. It came about only after a great deal of work had been done by the police and prosecutors, and in the face of an imminent trial and strong evidence. However it simplified the trial a little, and indicated some acceptance of responsibility.
    • There was substantial evidence of rehabilitation on the part of Mr Bechara. He was released on bail on 12 December 2013. He travelled to Victoria and undertook training as a crane operator. He returned to New South Wales and worked in that capacity for about three years. The learned sentencing judge was given a letter from his employer, who spoke of his capacity for hard work and reliability, and his expressed remorse for his actions. He commenced counselling with a psychologist in December 2014. A report from the psychologist said that he had strong motivation to turn from his life of crime and follow societal rules, and described significant changes he had made to his life to achieve those goals, and his devotion to his wife and children.
14. Near the end of the hearing of this appeal, senior counsel for the appellant made a submission to the effect that this appeal was not about the range of appropriate sentences, but about disparity. If it were about disparity, I think it should still fail. In my view, in the light of the steps taken by Mr Bechara towards rehabilitation and his plea of guilty, it could not be said that the appellant's sentence was so close to Mr Bechara's as to justify a sense of grievance.
15. I agree that the appeal should be dismissed.

1. This appeal is brought against orders of Pearce J made on 2 June 2017, convicting and sentencing the appellant after he had been found guilty by a jury of trafficking in a controlled substance contrary to s 12(1) of the Misuse of Drugs Act 2001, unlawful trafficking in firearms contrary to s 110A of the Firearms Act 1996, and dealing with proceeds of crime contrary to s 66A(2) of the Crime (Confiscation of Profits) Act 1993.
2. His Honour sentenced the appellant to six years' imprisonment and ordered that he not be eligible for parole until he had served three years of that sentence.
3. The appeal is on the sole ground that the sentence was manifestly excessive. Unjustified disparity between the appellant's sentence and that of his co-accused Mickael Bechara is not raised as separate and distinct ground of appeal.

1. The following facts surrounding the appellant's crimes appear from the learned sentencing judge's comments on passing sentence:

"In early 2013 Tasmanian police commenced an investigation into the distribution and sale of crystalline methylamphetamine in Tasmania. One of the targets was a Tasmanian man, Shane Ivey. The investigation led the police to the involvement of Mr Farhat and another man, Mickael Bechara. Both are from Sydney where Mr Bechara lived with Miss Allen. Between early March 2013 and 5 September 2013, Mr Bechara, Mr Farhat and Mr Ivey each, in different ways, trafficked in crystalline methylamphetamine by engaging in the business of the sale of the drug during that six month period in a continuous, commercial and systematic way. Mr Bechara sourced the drug in NSW and, with Mr Farhat, transported it to Tasmania and sold it to Mr Ivey for further sale. The investigation was brought to a head on 5 September 2013 when Mr Bechara and Mr Farhat were arrested at the Launceston airport about to fly to Sydney. Mr Bechara had checked in two suitcases in his name. One of the suitcases contained four handguns and some of (sic) ammunition. The other suitcase contained about $152,000 in cash. It follows from the verdicts that the jury was satisfied that Mr Farhat dealt with the proceeds of crime and did one or more of the activities which amount to trafficking in firearms under the Firearms Act, s 110A(2)(c). I am satisfied beyond reasonable doubt that Mr Farhat knew about the firearms and the money, and with Mr Bechara, had packed them and was in possession of them to convey them to Sydney as proceeds of the drug trafficking business in which both played a part.

When in Launceston, Mr Bechara and Mr Farhat were based at a rented unit at 26 Bennett Street. After the arrests at the airport Mr Ivey was found by the police at the unit with just over $22,000 in cash hidden in his car and two bags containing 22.4 grams and 27.4 grams respectively of high quality Ice on the front passenger seat. The amount of money and the value of the drug give some indication, when considered with other evidence, of the nature and extent of the trafficking in which all three men were involved. Recordings of intercepted phone calls mostly made between Mr Farhat and Mr Ivey but also involving Mr Bechara disclose a series of attempts, some successful and some not, to obtain Ice in NSW to sell in Tasmania. During the relevant period Mr Farhat travelled between Sydney and Launceston on many occasions, probably about 20. Mr Bechara also travelled between the two places but on fewer occasions. They supplied Mr Ivey from the Bennett Street unit. The cash and firearms they were taking to Sydney on 5 September 2013 also point to the scale of the trafficking. It cannot be determined whether the money found in the suitcase included the proceeds of the sale of the Ice Mr Ivey had in his car, which was worth about $15,000 if sold in larger quantities but up to $50,000 if sold to users in small individual quantities, commonly 0.1 grams. But these were not the only transactions. All of the $152,000 found at the airport was proceeds of drug sales. Counsel for the State and the defence agree that Mr Farhat is to be sentenced on the basis that the total proceeds of the sale of the methylamphetamine he and Mr Bechara sold to Mr Ivey was somewhere between $200,000 and $300,000. The intercepted telephone conversations between the men refer to what may be much larger sums. I am not bound by what the State contends but it seems to me to be a fair reflection of what can be proved beyond reasonable doubt. In any event, it was a substantial commercial operation, and the street value of the drug was potentially substantially more.

The four firearms in the suitcase were packaged in vacuum sealed plastic wrap and concealed inside the emptied out cases of two items of electronic equipment. They were a .22 calibre semi-automatic Ruger pistol with a silencer attached, a .32 calibre self-loading pistol and two revolvers. All were in working order. None were registered. All apart from one of the revolvers had the serial numbers removed. By packing the firearms for delivery to persons in NSW and conveying the firearms from one place to another Mr Bechara thereby trafficked in them."

1. Before turning to the appellant's personal circumstances and the sentence itself, I repeat what I have often said in the past in appeals such as the present as to the role of this Court. Professor K Warner in her book Sentencing in Tasmania, 2nd ed, Federation Press, 2002, at 440, said on the subject of appellate review of sentences for manifest excess or inadequacy:

"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) [1936] HCA 40; 55 CLR 499 at 504] Cranssen [(1936) [1936] HCA 42; 55 CLR 509 at 519] and Harris [(1954) [1954] HCA 51; 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."

1. And, as I have said before in appeals where the sole ground is manifest excess or manifest inadequacy, I bear Professor Warner's caveat in mind and content myself with setting out what Porter J said in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34]. His Honour there observed:

"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R [1936] HCA 40; (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'

32 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:

'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted.]

33 Later, in Wong v The Queen (above) at [58] Gaudron, Gummow and Hayne JJ said:

'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'

34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. ... ." (Emphasis added.)

1. More recently in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving the sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly, if I may comment with respect, summarised the relevant principles at [8] as follows:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. 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: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539." (Emphasis added.)

1. In passing sentence the learned sentencing judge commented as follows:

"Mr Farhat is now 40. He has lived in Sydney all of his life. He comes from a stable and supportive family. He attended school to grade 10 but, because of low intellect and attention deficit disorder, he has very low literacy. It is not suggested by his counsel, and there is no evidence, that there exists any mental or cognitive deficit which is relevant to sentence. Despite his problems he completed an apprenticeship as an automotive spray painter and repairer and worked in that capacity until the effects of a spinal condition prevented him from continuing not long before these crimes. For about 6 years of that period he managed to run his own business but relied on his family to help with administration. When his spinal condition became worse he was prescribed narcotic analgesic for pain but became addicted to it. He began to supplement his medication by alcohol and then he resorted to use of crystalline methylamphetamine. He has no convictions before his arrest for these crimes but has some since then which I will refer to shortly. He says that it was through a mutual interest in motor cars that he first met Mr Bechara, and that initially formed at least part of the reason he travelled to Tasmania. However they quickly turned to trafficking. He has no money or assets which suggests no large financial gain from the criminal conduct. There is no demonstration of an extravagant lifestyle or a high level of organisation. Nevertheless the amount of money changing hands was very significant.

There is a delay of about 3½ years between the crimes and the resolution of the charges. Mr Farhat was admitted to bail on 17 October 2013. He spent one more day in custody in April 2014. On his return to NSW while on bail he committed offences in that State. He was sentenced for a series of driving and dishonesty offences committed in July 2015 resulting in a period of imprisonment between 5 July 2015 and 2 May 2016. He was then extradited to Tasmania and has been in custody since then. His counsel contends that the delay between commission of an offence and final disposition of a case is mitigating. He pressed from an early stage for his trial to be brought to court quickly. However such delay is not per se mitigating. I think the case could have been advanced more quickly but the resources of the prosecution authorities are inevitably stretched by cases like this. No particular unfairness is pointed to and there has been little evidence of rehabilitation demonstrated by the accused in the meantime apart from imprisonment having resulted in enforced abstinence from drugs. To the extent that delay arose from circumstances beyond his control, it is not such that it should amount to a reduction in sentence.

By his plea Mr Farhat forfeited any claim to any form of remorse or acceptance of responsibility. He is not entitled to the mitigation an early plea of guilty would have attracted, especially in a case which required as much preparation and prosecution as this one did. He claims that prison will be more difficult for him, not only because of his spinal condition, but because he gave some assistance to the police and further that others have come to know about it and he is at risk as a result. I have every reason to consider that his medical condition can be adequately treated in prison. I would not have mentioned the second consideration but it has been raised in mitigation and so I must. There is no evidence that Mr Farhat did anything to assist in the prosecution of these crimes. He made clear from the outset that he would not give evidence against Mr Bechara. He made a statement to the police which could never have been used in court. He did so on the advice of his lawyer to attempt to obtain a favourable resolution of some charges against him. When that did not eventuate Mr Farhat did not give evidence against anyone. The decision to proceed to prosecution was vindicated by the finding of guilt on all charges, not only Mr Farhat but also, without Mr Farhat's evidence, Mr Ivey. I accept that his decision to make a statement to the police may be perceived by others in a way which is adverse to him. The level of actual risk is for others to judge. It is relevant however that he is presently being held in protective custody and, if it continues, it is likely to make prison more onerous for him.

I turn to the level of Mr Farhat's criminality. I think that Mr Farhat was, to some extent, subject to the direction and authority of Mr Bechara. However I am also satisfied beyond reasonable doubt that Mr Farhat played a positive and independent role in the trafficking business. He commonly demonstrated in his dealings with Ivey the capacity to act independently of Bechara. Mr Farhat was not only the main go-between, but actively pressed supply and was directly involved in transfer of large amounts of money and drugs and organisation of the business. The intercepted phone conversations also demonstrate his appreciation of the part firearms played in the drug trade." (Emphasis added.)

1. Turning to the sentence itself, the learned sentencing judge made the following remarks:

"I regard this as a serious case of trafficking. The detection and prosecution of trafficking of this nature demands, as this case demonstrates, the allocation of significant police and State resources. Ice is a pernicious drug. As I have said on other occasions, those who traffic in it deserve harsh punishment. It is highly addictive and damaging to health. It causes great harm to those who become addicted to it and the people around them. Its use and trade generates a great deal of other criminal activity, especially serious crimes of dishonesty and violence, some of which are seen by this Court but many of which go unseen. By engaging in the business of selling the drug Mr Farhat sought profit from the addiction and misery of many others. Even if large profit is not apparent in this case, it was not submitted that he acted for any reason other than financial gain. It may be his own use of prescription and illicit drugs caused him to act in a way which until then was uncharacteristic for him, but trafficking on this scale is not attributable to addiction, and he had considerable opportunity for reflection over a prolonged course of conduct. For all of those reasons, punishment and general deterrence are the dominant sentencing factors. His dealing with proceeds of crime arises in my view from the same criminal conduct as the trafficking and involves no criminality warranting an increase in sentence.

The legislative scheme of the Firearms Act also points to the gravity of the crime of trafficking in firearms. It may only be dealt with as an indictable offence, as opposed to other offences which may be dealt with summarily despite the heavy maximum penalties available. The firearms Mr Bechara and Mr Farhat had were strongly associated with the trafficking in methylamphetamine, most likely as payment for the drug. There is some overlap with the criminal conduct involved in the drug trafficking, but this crime involved serious and separate criminality. The link between the trade in illicit firearms, especially handguns of this nature, and the trade in drugs and other crimes of dishonesty and violence is well recognised. The risk that guns such as these pose to the community is a grave one. The semi-automatic pistols, especially the one fitted with a silencer, are quintessentially the type of firearms involved in violent crime. There could be no innocent reason for possession and transport of such weapons. The reason that trafficking in firearms is so serious is that persons who commit the offence facilitate the distribution of firearms amongst those not lawfully entitled to possess them, and whose identity and possession of the firearms will be secret, thus furthering the risk of use of firearms for a dishonest or violent purpose. In considering the aggregate sentence for all the crimes I take into account the principle of totality and all of the matters urged upon me by his counsel. Nevertheless the community cannot condone crimes like these and it is my duty to impose a substantial term of imprisonment.

I have decided to impose a lesser head sentence than the one imposed on Mr Bechara, and to make a different parole order. I regard Mr Bechara's criminality as marginally higher because of his greater level of control and authority. The evidence establishes Mr Bechara was the ultimate recipient of the proceeds even though Mr Farhat must also have had a financial interest. Although Mr Bechara was entitled to mitigation from his plea of guilty, his record was worse, and was also sentenced for perverting justice." (Emphasis added.)

1. In his written submissions, counsel for the appellant, Mr Melick SC, contends as follows:

2 His Honour has failed to properly distinguish between the relative culpability of the appellant and his co-accused, Mr Bechara, in that:

a) Mr Bechara had an extensive criminal record including many serious offences whereas the appellant had no prior convictions.

b) The guiding hand for all matters was Mr Bechara to whom all profits would flow.

c) The appellant suffers from an intellectual disability, attention deficit disorder, and illiteracy whereas his co- accused was an experienced and dominant criminal.

d) Mr Bechara, as noted by His Honour, was also convicted upon a charge of perverting justice.

e) Another co-accused Brigette Allen was sentenced by His Honour to 12 months imprisonment wholly suspended upon the same charge of perverting the cause of justice. Ms Allen had no prior convictions.

3 Inconsistency in the sentencing of co-offenders gives rise to a justifiable sense of grievance. Thus in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Mason J at 610 (as he then was) said:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community

4 Although His Honour noted the prison was likely to be more onerous for the applicant he failed to apply any discount for the fact that Mr Farhat is likely to spend most, if not all, of his sentence in protective custody.

5 It is well-settled law that this is a significant factor which will be taken into account upon sentence. See R v Rostom [1996] VicRp 60; [1996] 2 VR 97 per Charles JA referring to, inter alia, R v Bailey (1988) 35 A Crim R 458 and Malceski [2004] VSCA 138.

6 It has long been recognised that inmates who serve their sentence in protective custody face more onerous conditions of imprisonment than normal prisoners and such conditions have led to estimations that one year in protective custody is equivalent to between 18 months and two years in ordinary custody. See R v Davies and Gorman (1978) 68 Cr App R 319 at 322; R v Lowe (1977) 66 Cr App R 122. See also Sentencing Trends No 21 - Protective Custody and Hardship in Prison. https://www.judcom.nsw.gov.au/sentencing-trends-21/

7 The court in _R v Sukka_r [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [5] said that the level of discount should be reduced to reflect the decisions of R v Durocher-Yvon [2003] NSWCCA 299; (2003) 58 NSWLR 581 and _R v Mosty_n [2004] NSWCCA 97; (2004) 145 A Crim R 304 to the effect that a prisoner who offers assistance will not necessarily serve his or her sentence in onerous conditions. Howie J said in Sukkar at [5]:

It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact.

Unless there is evidence that the offender will serve his or her sentence in more onerous conditions as a result of giving assistance, the combined discount should not normally exceed 40%: Brown v R [2010] NSWCCA 73 at [38], quoting R v Sukkar. Where there will be more onerous conditions of imprisonment, the combined discount should not exceed 50%, unless very exceptional circumstances are disclosed. In that respect, onerous conditions are a corollary of the assistance granted and are not exceptional circumstances: Haouchar v R [2014] NSWCCA 227 at [37].

8 His Honour failed to give appropriate weight to the appellant's medical condition and his hardship in not being able to access a drug called OxyContin whilst in custody to ease the pain attributed to his medical condition. His medical condition being severe pain caused by a congenital spinal spars defect, two cracks in two of his vertebrae, a bulging disc nerve, a torn rotor cuff in his left shoulder and a cut in his left biceps tendon.

9 In R v Van Boxtel [2005] VSCA 175; 11 VR 258 at [30 -31] Callaway JA said;

The evidence in the present case does not disclose 'a serious risk of imprisonment having a gravely adverse effect on the offender's health'. The question it presents is whether 'imprisonment will be a greater burden on the offender by reason of his state of health', ie the first, rather than the second, alternative in the last sentence of the passage set out above. The weight of authority, and Victorian sentencing practice, support the view that it is a circumstance of mitigation that a sentence of imprisonment will be significantly more burdensome for a prisoner than for a person in normal health. That applies to both physical and psychiatric illnesses and disabilities... In R v Bell ( Unreported, Court of Appeal, 18th August 1997), for example, Batt, JA, with whom Phillips, CJ and Vincent AJA agreed, said that, on the facts of that case, a merciful sentence was called for 'because ... imprisonment would be a greater burden upon the applicant than upon the average prison inmate by reason of the applicant's extremely poor health.'

10 In the Northern Ireland case of The Queen v Dolores Savage & Samuel Noel Savage [2016] NICC 21 Treacy J said at [25];

There is a well-established line of authority that in certain cases the court can impose a lighter sentence than that which would ordinarily be appropriate when the offender suffers from some physical or mental disability. Thus in determining the appropriate sentence it is permissible to have regard to any physical disability or illness which will subject the offender to any unusual degree of hardship if he is imprisoned. An offender's serious medical condition may enable a court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate: see AG's Reference (Number 1 of 2006) Gary McDonald & Others' [2006] NICA 4 where, at para39, Kerr LCJ stated:

'[39] It is permissible to have regard to any physical disability or illness which will subject the offender to an unusual degree of a hardship if he is imprisoned - see, for instance, R v Leatherbarrow (1992) 13 Cr App R (S) 632; R v Green (1992) 13 Cr App R (S) 613. It is less clear that the illness of a relative can be taken into account for the same purpose. The effect that personal circumstances may have on the selection of a sentence was discussed by this court in R v Sloan (Neutral Citation No.(2000) 2132). In that case Carswell LCJ said: "There is a well settled line of authority that in certain cases the court can impose a lighter sentence than that which would normally be appropriate for the type of offence where the offender suffers from some physical or mental disability: see, eg, the discussion in R v Bernard [2000] EWCA Crim 3546; [1997] 1 Cr App R (S) 135 and the principles deduced from the previous reported cases by Rose LJ at pages 138-9

11 His Honour failed to give appropriate weight to the applicant's assistance to both Tasmanian Police (TASPOL) and the NSW Middle East Organised Crime Squad (MEOCS) .

12 Cooperation is not just restricted to giving evidence but also includes the provision of intelligence, especially when such actions have, as occurred in this case, exposed the giver to substantial danger or death.

13 The information given was obviously of some assistance as TASPOL wrote to the DPP recommending using the applicant as an informer and witness. See _Tasmania v Farha_t [2017] TASSC 42 at [7-10] and briefing note (which was before His Honour for the hearing of the application) attached hereto.

14 His Honour failed to give appropriate weight to the fact that by providing information to the authorities, the applicant jeopardised his own safety, both within and outside the prison environment.: Malvaso [1989] HCA 58; (1989) 168 CLR 227 (Appeal from SC SA); Woods 2/5/1989 CCA Vic: THN [2004] VSCA 7.

15 His Honour failed to give any weight to the delay of 3.5 years between the crimes and the resolution of the charges and the 439 days he had served in custody in Tasmania before his appearance at trial."

1. In response, counsel for the State, Mr Ransom, in his supplemental submissions contends as follows:

When considering the appellants criminality Justice Pearce stated;

'I turn to the level of Mr Farhats' criminality. I think that Mr Farhat was to some extent subject to the direction and authority of Mr Bechara. However, I am also satisfied beyond reasonable doubt that Mr Farhat played a positive and independent role in the trafficking business. He commonly demonstrated in his dealings with Ivey, the capacity to act independently of Bechara. Mr Farhat was not only the main go between, but actively pressed supply and was actively involved in transfer of large amounts of money and drugs and the organisation of the business. The intercepted phone conversations also demonstrate his appreciation of the part firearms played in the drug trade.' (AB p21 paragraph 2)

The vast majority of telephone calls relied on by the State at the trial involved conversations between the appellant and Ivey discussing the sourcing, purchasing and distribution of ICE. They also discussed the value of firearms.

Mr Bechara pleaded guilty. The Appellant proceeded to trial disputing identity and alleging Police corruption.

Mr Becharas' non-parole period was 3 years and 9 months of a 6.5 year head sentence. The Appellant's non-parole period was 3 years of his 6 year head sentence.

The difference of 9 months in the non-parole period properly reflected the relative levels of criminality of Mr Bechara and the appellant.

Justice Pearce concluded that the Appellant's medical condition would be 'adequately treated in prison'. (AB p21).There was no medical evidence to suggest the contrary.

The heart of the Appellant's complaint appears to be his lack of access to OxyContin, which his own counsel advanced he was addicted to. (AB V2 p 8 L11).

Protective Custody/Assistance to Police & Jeopardising his own Safety

1 All that arises from the briefing note is an indication by police that they would have the matter considered by the DPP. The 'offer' was rejected by the DPP, a decision Justice Pearce referred to as 'vindicated by the finding of guilt on all charges, not only Mr Farhat, but also without Mr Farhat's evidence, Mr Ivey'. (AB p 21).

2 The appellants 'offer' was conditional, and made in the context of him attempting to further his position with respect to bail.

3 The appellant did not provide any information additional to that already known from evidence obtained during Operation Web.

4 If the appellant did give significant information to New South Wales Police, which is not conceded, then the specifics of that assistance should have been raised by way of a 'letter of comfort', preferably when his New South Wales matters were dealt with in July 2015.

5 Despite apparent concerns for his own safety, the conduct of the appellant's trial included an unsuccessful application for an injunction to prevent the release of a statutory declaration made by him on the 7th October 2015. (See Farhat v DPP [2017] HCA transcript 92). In taking that step, the appellant made a tactical decision to place his dealings with police in the public arena. Similarly his counsel, stated in open court that the appellant was a police informer during the plea.(AB V2 p11 L31 )

It is submitted that the delay in this case is a neutral factor. The delay in the matter coming to trial resulted from:-

1. Mr Richardson (Bechara), Mr Hughes (Ivey) and Mr Melick/Mr Broomhall (Farhat) all being available at the same time.

1. The trial being unable to proceed until the appellant had completed the sentence he was serving in New South Wales, offences committed while on bail for this matter."
2. In his original written outline, which unusually preceded the filing of Mr Melick's submissions, Mr Ransom submitted that the sentence imposed was not excessive and that "criminality involving the importation of ICE by air or sea to Tasmania must attract public deterrence as a major sentencing consideration".
3. As to the specific matters of complaint, namely disparity, assistance to police, prison being more onerous and delay, I accept the submissions made by Mr Ransom as both factually correct and correct in principle, and I bear those matters in mind to the extent adumbrated by him when considering the overarching question of whether the learned sentencing judge erred by imposing a sentence that was manifestly excessive.

1. The magnitude of the appellant's trafficking contrary to the provisions of the Misuse of Drugs Act and contrary to the provisions of the Firearms Act and the criminality involved in both is, in my view, quite high.
2. There are very few sentences in Tasmania for the crime of unlawful trafficking in firearms so it is perhaps sensible to commence with a consideration of the regrettably more familiar crime of drug trafficking. The observations of Blow CJ in Director of Public Prosecutions v Williamson [2013] TASCCA 6 at [13]- [24] are particularly relevant in that regard. There, his Honour said:

"13 By Tasmanian standards, this was an extremely serious case of drug trafficking. Trafficking on such a scale is so rare in this State that it cannot be said that there is a sentencing tariff for such cases. Because the facts of every case are different, the consideration of sentences imposed in other specific cases is of limited value. However I think it is worthwhile surveying some of the heavier sentences that have been imposed in drug cases in Tasmania.

14 To the best of my knowledge, no sentences of longer than 5 years have been imposed in Tasmanian drug cases. Sentences of that length appear only ever to have been imposed on two co-offenders named Stocks and Thorley. Stocks received at least $220,000 as his share of the proceeds of a cannabis trafficking operation that was carried on over some two years. An appeal to the Court of Criminal Appeal was unsuccessful: Stocks v R (above). Thorley was also involved for over two years, providing capital, equipment and expertise, and receiving profits in excess of $200,000: R v Thorley [1999] TASSC 73.

15 In Tasmania v Maynard (unreported, 29 June 2011), Evans J sentenced a trafficker to 4½ years' imprisonment, with a non-parole period of 3½ years. That man was a persistent drug trafficker who was found in possession of methylamphetamine with a market value of about $32,500, a total of $48,200 in cash, a revolver and a pistol.

16 Sentences of 4 years' imprisonment have been imposed in several cases. In Vergos v R A89/1996, [1996] TASSC 154, the appellant had cultivated, transported and sold large quantities of cannabis over some two years. He had received almost $90,000 when apprehended, and had harvested a crop that was expected to return over $300,000. He pleaded guilty, and had taken significant steps towards rehabilitation. The Court of Criminal Appeal held that his sentence was not manifestly excessive.

17 In R v Delaney (unreported, 10 April 1997), Cox CJ sentenced an offender to 4 years' imprisonment, following a late plea of guilty, for trafficking in amphetamine and heroin over a period of 11 months. Police officers had seized drugs with a street value of at least $270,000 at the end of that period.

18 In Tasmania v Billinghurst (unreported, 24 August 2007), Crawford J (as he then was) imposed sentences of 4 years' imprisonment on two major suppliers of methylamphetamine. They had been trafficking in the drug for about three months, importing it into Tasmania, with a weekly turnover of about $20,000. Billinghurst had a worse record than his co-offender Jones. His Honour therefore fixed parole ineligibility periods of 3 years for Billinghurst and 2 years 3 months for Jones.

19 In Wisniewski v Tasmania [2007] TASSC 25, the appellant had been sentenced to 4 years' imprisonment, with a non-parole period of 3 years, for trafficking in MDMA or ecstasy over a period of some 11 months. He sold $150,000 worth of the drug over that period. The Court of Criminal Appeal held that the head sentence of 4 years' imprisonment was not manifestly excessive, but resentenced, him, imposing a non-parole period of 2 years instead of 3 years.

20 In R v Newman (unreported, 27 February 1992), Crawford J imposed a sentence of 3 years 6 months' imprisonment on a man for trafficking in cannabis on the basis that he was found with over $300,000 worth of the drug and was dividing it into small quantities for sale.

21 In Tasmania v Leicester (unreported, 13 May 2009), I imposed a sentence of 3 years 4 months' imprisonment, with 12 months thereof suspended and a non-parole period of 14 months, on a man who, over a period of some 4 years 10 months, had imported and sold hundreds of thousands of dollars worth of methylamphetamine. I suspended part of the sentence and imposed the shortest possible non-parole period because the defendant had been trafficking to fund the use of substantial quantities of the drug by his partner and himself without becoming wealthy, and had been making good progress towards rehabilitation since his arrest.

22 In Tasmania v Stevens (unreported, 10 December 2010), Evans J sentenced a man to 3 years' imprisonment, with a non-parole period of 18 months, in respect of a sophisticated hydroponic cannabis cultivation and sale operation that endured for over two years. The offender had previously been to prison for trafficking.

23 In R v Michieletto A45/1995, [1995] TASSC 87, Slicer J sentenced a man to 3 years' imprisonment for conspiring to traffic in cannabis, as well as 46 summary drug offences. He was involved in a commercial operation for which he was to receive at least $50,000. A significant mitigating factor in that case was that the offender co-operated with the police to the extent of revealing involvement in the cultivation of cannabis at 17 plantations, and preventing confrontations between police officers and armed members of his organisation.

24 Sentences of less than 3 years' imprisonment are a little more common in trafficking cases. I think it is fair to say that sentences in the vicinity of 2 years' imprisonment are generally attracted by involvement in commercial operations of a substantially smaller scale than the operation that is the subject of this appeal."

1. To put those remarks of Blow CJ into a context it is necessary to understand that in Williamson the relevant facts, as they were summarised by the learned sentencing judge, were as follows:

"These matters arose from a search of the defendant's vehicle after he disembarked from the Spirit of Tasmania in 2010 and was intercepted. A search of the vehicle revealed the following:

Four snap lock bags with a combined total of 58.8 gms of methylamphetamine.

Three bags containing a combined total of 8.5gms of ketamine.

One bag containing .4 gms of dimethyltryptamine (known as DMT), together with ketamine and cocaine.

A drink flask containing 700 millilitres of butanediol - sometimes referred to as liquid ecstasy.

A foil containing eight perforated patterned tickets containing LSD.

Three capsules of 3,4 methylenedioxymethcathinone, one of which also contained caffeine.

A quantity of prescription tablets including 30 of diazepam and one of Viagra.

Police also found a cash tin containing $13,700 in cash, digital scales, unused snap lock bags, cocaine preparation kit, smoking devices, in one of which DMT was detected, with methylamphetamine being detected in the other, tick sheets, travel documents showing regular travelling to Melbourne between June 2010 and November 2010, and two mobile phones, both containing drug-related text messages.

A search was conducted of the defendant's home at Lenah Valley. The following items were located in various parts of the house:

One capsule containing 3,4 methylenedioxymethcathinone.

An Ajax safe which was then locked, but opened by police a few weeks later.

Whilst the search of the defendant's home was underway, police made enquiries next door, as a result of which that house was searched pursuant to a search warrant. Items were seized from underneath the house. There was one box containing 2,248 capsules containing 3,4 methylenedioxymethcathinone and caffeine. There were 11 bags each containing one gram of caffeine and cocaine, and one bag containing 4.5 grams of caffeine and cocaine. Again numerous items referable to the preparation, mixing, weighing, packaging and sale of drugs were found, including sets of digital scales, snap lock bags, caffeine powder and a supplement powder, together with a number of mobile phone SIM packs. When the safe was opened, it was found to contain two brown paper bags containing a total of $199,900. A metal briefcase was also located. This contained:

Investigations led the police to a further address in Lenah Valley at which, in a filing cabinet, police found a plastic shopping bag containing three bundles of cash totalling $195,100. This bag was traced to the defendant.

The five counts of trafficking on the indictment represent various categories of controlled substances found in the defendant's vehicle and in the various properties. The three counts of dealing with property suspected of being proceeds of crime relate to the $13,700 in cash found in the vehicle, the $203,400 found in the safe and the $195,000 [sic] found at the other Lenah Valley address. The Crown has put the total value of all of the controlled substances in the accused's possession, but basing sales of the methylamphetamine on ounces or grams, at $105,000, with the Viagra contributing an additional $2,000. As far as the controlled substances are concerned, they are sometimes misleadingly referred to as party drugs, perhaps in order to distinguish them from the far more harmful and sinister types of controlled substances which exist. However that should not serve to deny the fact that these drugs can be addictive and pose very serious health risks, up to and including death, particularly if combined with the use of other substances such as other illicit substances or alcohol."

1. The sentence imposed by the learned sentencing judge in Williamson in respect of the 11 drug-related charges to which the defendant had pleaded guilty was a global sentence of two years' imprisonment, and an order that the defendant not be eligible for parole until he had served 12 months of that sentence.
2. As is already apparent, the Director of Public Prosecutions appealed against that sentence on the grounds that it was manifestly inadequate. The appeal was upheld. Blow CJ, with whom Tennent and Wood JJ agreed, said at [28]-[29]:

"28 In my view the mitigating factors in this case, whilst not insignificant, should not entitle the respondent to particularly lenient treatment. He committed very serious crimes. He was engaged in large-scale commercial criminal activity. He made huge profits. It must have taken him months, at least, to accumulate those profits. The drugs that passed through his hands were likely to cause a lot of misery to a lot of people. Because of that, the need for general deterrence was particularly important in this case. Taking all relevant matters into account, I think it would be appropriate for the respondent to be sentenced to 4½ years' imprisonment.

29 The shortest parole ineligibility period that may be imposed is one half of the head sentence: Sentencing Act 1997, s 17(3). Because the respondent has not been to prison before, and because of his experiences there, I think an order should be made permitting parole after he has served half his sentence."

1. Since Williamson there have been several sentences in cases of trafficking in a controlled substance of more than three years' imprisonment. They include the last four matters listed in the table set out below. That table summarises a number of sentences of more than three years' imprisonment imposed in trafficking cases since 2003.

Table of Sentences of Imprisonment for Trafficking in a Controlled Substance

Accused found with a considerable quantity of methylamphetamine and $17,677 and charged with trafficking. Whilst on bail was so found on 5 occasions. A commercial dealer on the streets.

Not eligible for parole until 2 years have been served.

Trafficked $150,000 worth of Ecstasy over an 11 month period during which he was charged, bailed, but continued the conduct. See Andrew Wisniewski

4 years' imp from 1/02/2006 - Appeal to CCA 23/04/07 [2007] TASSC 25 - Sentence quashed, re-sentenced to 4 years' imp from 1/02/06, not eligible for parole until he has served 2 years. Pecuniary penalty of $150,000 quashed, to pay the State $149,635

Not eligible for parole until 3 years served (see note re appeal)

Grew $275,000 cannabis over 2½ years with another man

Conviction; 3 yrs 6 mths' imp, one year suspended on condition commit no crime involving drugs for 3 yrs after release; money and items seized by police forfeited to Crown

Not eligible for parole until served 15 mths of sentence

Billinghurst and Jones were major suppliers of methylamphetamine trafficked over a 14 week period. Barrett was one of about three street dealers below them. See Garry Maxwell Billinghurst and Jamie Barrett 24 August 07

Not eligible for parole until 2 years, 3 months served

Billinghurst and Jones were major suppliers of methylamphetamine trafficked over a 14 week period. Barrett was one of about three street dealers below them. See Adam Arnold Jones and Jamie Barrett 24 August 07.

Street dealer in large methylamphetamine ring. He was selling about $3000 worth each weekend.

Not eligible to apply for parole until one year nine months of imprisonment has been served

Found in possession of $9,100 cash and methylamphetamine and ecstasy with a potential street value of over $600,000. Early plea of guilty but made few admissions & provided little information.

Not eligible for parole until served 18 months of this sentence

Two brothers found in possession of 48 kilograms of cannabis worth at least $300,000 to $400,000

Not eligible to apply for parole until 18 months of sentence has been served

Two brothers found in possession of 48 kilograms of cannabis worth at least $300,000 to $400,000

Not eligible to apply for parole until 18 months of sentence has been served

Sophisticated hydroponic production and sale of cannabis over a period of 2 years and 2 months by an experienced trafficker who had previously been in prison for trafficking

65 yo male acting as supplier & distributor. Large scale commercial drug trafficking operation. 36 ozs found in his possession and if on-sold by the defendant had a value of $128,000. Sold methylamphetamine in not less than 1-2oz lots. Late plea of guilty.

Not eligible to apply for parole until 18 months of sentence has been served

29 y/o on 2 counts. 4-methylmethcathinone. First bought from website, sold some himself and some to dealer. Then involved in importing bulk powder. 6kg. Street value $1.7m. Offending in 2009 - 2010.

Not eligible to apply for parole until 2 years of sentence has been served

Experienced drug trafficker found with 55g of crystal meth, 13g of heroin and $68,000 cash. Then with girlfriend tried to bring to Tasmania 321g crystal meth with potential street value in excess of $300k. See Christina Watson

Four and a half years imp to commence from 27 September 2014

Not eligible to apply for parole until 3 years of sentence has been served

3 family members pleaded guilty to trafficking. No relevant prior matters. One principal offender and other 2 in lesser roles. Offending ceased over 4 years before sentence. Sophisticated and commercial operation. Large amounts of methylamphetamine. Unexplained wealth declaration made - $700,000

4 years' imp. SEE COPS FOR EMMA SWAN AND BEVIN SWAN 22.2.16

1. To those sentences must be added the sentence in Stebbins v Tasmania [2016] TASCCA 6. Stebbins was the most serious case of drug trafficking seen to date in Tasmania and attracted a sentence of 12½ years' imprisonment. Also to be added is the sentence in Zmendak (14 March 2017) of 8 years' imprisonment and the sentence in Wimmer (28 September 2017) of 4 years' imprisonment. I leave to one side the sentence of 6 ½ years' imprisonment imposed on Mr Bechara although it has not been the subject of an appeal. Having set out the foregoing potentially comparable sentences however, I nonetheless respectfully agree with the observations of Pearce J in Stebbins at [100]-[108] as to the relevant general principle arising in such cases. On the unsuccessful appeal in Stebbins against the severity of sentence, Pearce J said as follows:

"100 Although Mr Williamson's case was described as 'extremely serious' by Tasmanian standards, it was, in my view, far less serious than the crimes committed by the appellant. In his reasons for decision in this appeal, Estcourt J refers to sentences in this State in trafficking matters, including by reference to the survey conducted by Blow J in his reasons in Williamson. As to the Tasmanian cases, the position remains much the same as it was when this Court decided Williamson. There is insufficient information to indicate a pattern of sentencing for crimes of this nature.

101 Because of the absence of an established range for sentences for trafficking in Tasmania, it cannot be said that discrepancy between the sentence in this case and other sentences previously imposed in this jurisdiction leads to the conclusion that the sentencing judge fell into error. It is necessary to resort to matters of general principle in sentencing for serious drug trafficking cases, not just to a comparison with past Tasmanian sentences. The purpose of the Sentencing Act 1997 is set out in s 3. Relevantly, the purpose includes to:

(b) promote the protection of the community as a primary consideration in sentencing offenders; and

(c) promote consistency in the sentencing of offenders; and

(e) help prevent crime and promote respect for the law by allowing courts to -

(i) impose sentences aimed at deterring offenders and other persons from committing offences; and

(ii) impose sentences aimed at the rehabilitation of offenders; and

(iii) impose sentences that denounce the conduct of offenders; and

(h) recognise the interests of victims of offences.'

102 These provisions, in a statutory form, allow a court to pursue the sentencing aims of protection of the community and victims of crime, denunciation and general and specific deterrence, as well as consistency of sentencing and rehabilitation of offenders. As I said recently in _Sweetman v Tasmani_a [2016] TASCCA 5, those who traffic in illicit drugs should expect harsh punishment. It is a trade which causes misery to individuals and the people around them, and immeasurable harm to the community. Sometimes the damage is obvious, but it also often occurs in a way that is not readily apparent. Traffickers encourage and foster the abuse of drugs. Trafficking motivated by commercial gain involves greater criminality. The trade in and abuse of drugs, including amphetamine, generates other criminal activity, especially serious crimes of dishonesty and violence. As was pointed out by the sentencing judge, this Court frequently sees the criminal results of drug use. Like statements have been made by Australian courts for many years. In Clune [1989] VicRp 52; [1989] VR 567 at 576 the Victorian Court of Appeal said:

'This court has made it clear over recent years that persons detected in the business of trafficking in heroin can expect little mercy from the courts. Offenders play for high stakes. Such offences cause very considerable misery within the community. Persons detected in such offences who may be regarded as key figures in the drug industry deserve condign punishment.'

103 More recently, the same court expressed similar sentiments in Mokbel v The Queen [2013] VSCA 118; (2013) 40 VR 625 at 653 [108]:

'The sentences imposed had to be seen to reflect the community's abhorrence of trafficking in drugs, and the Court's denunciation of a person who, for reasons of sheer greed, was prepared - repeatedly and determinedly - to inflict untold harm on the community.'

104 The importance of general deterrence and punishment as sentencing considerations in serious drug cases has been repeatedly emphasised by the High Court and intermediate courts of appeal in Australia. Sentencing courts are correct to give predominance to those factors in sentencing for this crime. In Wong, the High Court dealt with the federal offence of being knowingly concerned in the importation of heroin. At 607-608 [64] the plurality said:

'In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.' [Footnote removed.]

105 Those persons who may be inclined to engage in the commercial importation and sale of illicit drugs for profit, must balance the chance of high returns with knowledge that apprehension and conviction will result in sentences of 'unequivocal severity': R v Tait (1979) 46 FLR 386 per Brennan, Deane and Gallop JJ at 399. As their Honours pointed out, the punishment imposed 'must be calculated to protect society from the deliberate attack made on it'. See also R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717. Similar principles, with which I respectfully agree, were expressed by the New South Wales Court of Criminal Appeal in R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 at 382-383 [286] and R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 at 552-553 [114].

106 Close attention is to be given to the scheme of the legislation and to the maximum available sentence for trafficking enacted by the legislature. The Act, according to the long title, is an Act to prohibit the misuse of drugs and activities associated with the misuse of drugs and for related purposes. The Act refers to a 'controlled substance', which term includes a 'controlled drug', a 'controlled plant' and a 'controlled precursor'. Those terms refer to substances and plants specified in Sch 1 of the Act. Part 2 of the Schedule specifies 282 controlled drugs, including amphetamine (item 22), cocaine (item 67) and N,α-dimethyl-3,4-(methylenedioxy) phenylethylamine (MDMA or ecstasy) (item 177). Part 3 of the Schedule specifies controlled plants including cannabis. The Act creates and identifies offences arising from the possession, manufacture and sale of controlled substances. It divides the offences into major offences and minor offences. Major offences are indictable: s 5. Part 4 of the Act is entitled 'Enforcement' and provides police officers with powers of search and seizure and to require information.

107 There are 11 major offences specified the Act. Trafficking in a controlled substance is a major offence: s 12. Others include, for example, manufacturing a controlled drug for sale, s 6, cultivating a controlled plant for sale, s 7, possessing a thing intended for use in manufacture of a controlled substance for sale, s 8, concealing property derived from a drug offence, s 16, and receiving property direct from a drug offence, s 17. For each major offence the Act provides for a maximum penalty of imprisonment for a term not exceeding 21 years. The penalty provisions for major offences are to be contrasted with the maximum penalty provisions for minor offences, which are either 'a fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years' or a 'fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years', depending on the offence. The Act contains provisions which facilitate the proof of crimes. For some of the controlled substances specified in the schedule, trafficable quantities are specified. If is it proved that an accused person prepared for supply, transported, guarded or concealed, possessed or imported a trafficable quantity of a controlled substance, then it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief specified in the definition of trafficking concerning the sale of the controlled substance required to constitute the offence: s 12(2).

108 The provisions of the Act which I have summarised evince a legislative intention to facilitate the investigation and proof of drug trafficking and to visit those found guilty of the crime with heavy penalties. The maximum penalty legislated in the Act carries considerable relevance because, unlike the catch-all maximum 21 year sentence provided by the Criminal Code, Parliament has specifically directed its attention to penalties for major offences." (Emphasis added.)

1. It is trite to say that the maximum penalty is to be reserved for the very worst of cases. The appellant's drug trafficking might not be described as being at the top end of the range of seriousness for offences of their type, but it was, in my view, very substantially above low-level and approaching the middle of the range. In my view the crime of trafficking alone, before any rounding down for totality, should have attracted a sentence in the vicinity of four years' imprisonment.
2. To the appellant's drug trafficking however, there must of course be added his involvement in the very serious crime of unlawful trafficking in firearms. Turning to this component of the appellant's overall criminal conduct, I respectfully adopt the gravamen of the observations of Pearce J in Williams v Parker [2016] TASSC 39, at [11], where his Honour commented on the nature of the less serious offence of possession of a stolen firearm, and on the relevant legislative intention to be discerned as to that crime as follows:

"11 A person who possesses a stolen firearm commits an offence against s 107A. Section 107A was inserted into the Act by amendment in 2015 and became operative on 4 November 2015 as a legislative response to concern about the association between stolen firearms and other crimes of dishonesty and violence. The offence is an indictable offence punishable under the Code or may, as in this case, be tried summarily. If dealt with summarily, the offence is punishable by a fine not exceeding 100 penalty units, or imprisonment for a term not exceeding five years, or both. By reference to the Minister's second reading speech made in the House of Assembly on 24 and 25 March 2015, the creation of the offence and the heavy potential penalties which accompany it, disclose a legislative intention that those found in possession of a stolen firearm should face a harsh punishment." (Emphasis added.)

1. Unlawful trafficking in firearms is, by virtue of s 110A of the Firearms Act, purely an indictable offence punishable under the Criminal Code. Given the legislative intention in relation to the offence of simple possession of a stolen firearm, trafficking in unregistered handguns with the serial numbers removed is axiomatically, in my view, a crime that should attract a heavy sentence. As the learned sentencing judge remarked in passing sentence, these were quintessentially the type of firearms that are involved in violent crime.

1. Given all the considerations to which I have referred, and bearing in mind the appellant's combined and cumulative criminality involved in trafficking in both drugs and illegal firearms, I am wholly unpersuaded that any error is to be detected in the learned sentencing judge's single sentence of six years' imprisonment. It needs to be borne steadily in mind, as was said by Nettlefold J in Aherne (above), that the Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error. It is all too easy, amidst the close examination of sentencing principles and sentencing data raised on appeals on the ground of manifest excess or inadequacy, to lose sight of the principle that sentencing judges must be accorded the wide measure of latitude identified by Kirby J in Postiglione v The Queen (above), at 336.
2. It may be accepted that there is an absence of an established range in Tasmania for sentences for trafficking in either drugs or illegal firearms but, in my view, resort to well established sentencing principles demonstrates the reasoning adopted by the learned sentencing judge to be irrefutably sound.
3. Unlike Mr Bechara who pleaded guilty, the appellant could claim no mitigating circumstances. Drug trafficking on this scale cannot be attributed to personal addiction, as the learned sentencing judge observed. In my view his Honour's sentence is unimpeachable. He took into account the totality principle, and he specifically stated that the appellant's crime of dealing with proceeds of crime, to the more limited extent that he may have ultimately received such proceeds, as compared to Mr Bechara, arose from the same criminal conduct as the drug trafficking, and involved no criminality warranting an increase in sentence. His Honour's sentence makes due allowance for the respective and independent roles of the appellant and Mr Bechara and even were unjustified disparity a separate ground of appeal the appellant could have no justified sense of grievance in my view. The appellant's medical condition did not call for any special consideration. Nor did the appellant's "offer" arising from the briefing note, beyond that which his Honour gave to it, namely by observing that it was relevant that the appellant was being held in protective custody, and that if that continued it was likely to make prison more onerous for him. Finally, his Honour correctly noted that such delay as was involved in bringing the appellant to trial was not per se mitigating.

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