Gul v The Queen [2016] VSCA 82

CRIMINAL LAW - Appeal against sentence - Whether individual sentence on charge 1 and total effective sentence manifestly excessive - Strong mitigating circumstances, including exceptional efforts at rehabilitation - Appeal allowed - Appellant resentenced to 2 years' imprisonment with a 1 year non-parole period - Yacoub v The Queen [2006] VSCA 203 considered.

Court of Appeal (Vic)|2016-04-28|Before: Mr J, Osborn JA, Priest JA, Coghlan JA, Kyrou JA

CRIMINAL LAW - Appeal against sentence - Appellant pleaded guilty to a number of drug offences, including trafficking in steroids weighing 37.5 grams short of the commercial quantity threshold of 5 kilograms (charge 1) - Sentence of 3 years for charge 1, with a total effective sentence of 4 years and a non-parole period of 2 years and 9 months - Judge ordered that appellant be assessed for suitability for a community correction order (CCO) - Appellant assessed as suitable for CCO - Judge did not refer to a CCO as a sentencing option in his sentencing remarks - This omission did not constitute sentencing error - Sentencing Act 1991 s 5(4C), Boulton v The Queen [2014] VSCA 342, Arthars v The Queen (2013) 39 VR 613 considered.

1 On 13 August 2015, the appellant (now aged 33) pleaded guilty to a number of drug offences in the County Court. Following a plea on that date, he was sentenced on 20 August 2015 as follows:

Trafficking in a drug of dependence [Drugs, Poisons and Controlled

Possessing material and equipment for purposes of trafficking [DPCSA s 71A]

Possessing a drug of dependence [DPCSA s 73(1)(c)]

Possessing a drug of dependence [DPCSA s 73(1)(b)]

Possess a sch 4 poison without authorisation or licence (Sildenafil) [DPCSA s 36B(2)]

Possess a sch 4 poison without authorisation or licence (Clenbuterol)

Possess a sch 4 poison without authorisation or licence (Clomiphene)

Possess a sch 4 poison without authorisation or licence (Liothyronine)

Possess a sch 4 poison without authorisation or licence (Exemestane)

Deal with property suspected of being the proceeds of crime ($100 cash) [Crimes Act 1958 s 195]

Deal with property suspected of being the proceeds of crime ($375 cash)

Deal with property suspected of being the proceeds of crime (Apple iPhone)

Deal with property suspected of being the proceeds of crime (Various electronic items)

Possess a sch 4 poison without authorisation or licence (Aminophylline)

5 years and 6 months' imprisonment with a non-parole period of 4 years.

Other orders: Forfeiture Order pursuant to s 32(1) of the Confiscation Act 1997;

2 On 2 December 2015, Osborn JA granted leave to appeal on the following amended grounds:

The learned sentencing judge erred in failing to give any or any proper regard or consideration to the positive [community correction order] assessment ordered and provided to the Court, and failed to apply s 5(4C) of the Sentencing Act 1991.
The individual sentences on Charges 1-4, orders for cumulation on Charges 1-4 and resulting total effective sentence and non-parole period are all manifestly excessive in the circumstances. In particular, the learned sentencing judge gave too great weight to general deterrence, and insufficient weight to the rehabilitation of the [appellant].

3 For reasons that follow, the appeal will be allowed and the appellant will be resentenced as set out at [70] below.

4 On 21 August 2014, search warrants were executed on the premises at which the appellant resided with his parents. He was not at home.

5 The police located a variety of drugs and drug paraphernalia mainly in the appellant's bedroom. These included liquids, pills, powders, crystals, plant material, zip-lock bags, cash, glass containers and scientific equipment. The police seized 243 separate drug-related items.

6 For the purposes of the plea, the seized items were rolled up into five categories, each being a charge on the Indictment (charges 1-5). The remaining charges were 10 related summary offences.

7 Charge 1 relates to anabolic and androgenic steroidal agents. A total quantity of 4962.5 grams of these agents in the form of liquids in vials and solids in tablets, bags and containers was located, primarily in the appellant's bedroom. The commercial quantity threshold for these agents was 5000 grams and the traffickable quantity was 500 grams.

8 Charge 2 relates to tablets, capsules and powders of 3,4-methylenedioxy-N-methylamphetamine ('MDMA') and 3-4-methylenedioxyamphetamine ('MDA'). A total quantity of 53.8 grams of MDMA (at 30-70 per cent purity) and 17.9 grams of MDA (at 12 per cent purity) was located primarily in zip-lock bags in the appellant's bedroom.

9 Charge 3 relates to scientific glassware, chemicals, filter papers, a hot plate and other equipment as well as 239.4 grams of phenylalanine and 162 Demazin tablets containing pseudoephedrine (precursor chemicals). These items and substances were located in the appellant's bedroom and the garage.

10 Charge 4 relates to drugs of dependence found in greater than traffickable quantities, namely 15.4 grams of MDA, 11.8 grams of cocaine and 1872.2 grams of mescalin. The mescalin was contained in pieces of cacti. 1.4 grams of amphetamine were also found in powders containing methylamphetamine.

11 Charge 5 relates to drugs of dependence all found in quantities less than a traffickable quantity, being 0.4 grams of ketamine, 0.4 grams of methoxetamine, 0.5 grams of dimethosyphenethylamine (2C-H) and 10 grams of Cannabis L.

12 Summary charges 28, 29, 33, 34, 35 and 56 relate to substances classified as poisons located in the appellant's bedroom.

13 Summary charge 38 relates to $325 cash found in the appellant's bedroom. Summary charge 41 relates to two mobile phones, an iPad and a laptop found in the appellant's bedroom.

14 The police also located in the appellant's residence approximately 100 unopened syringes, 147 ice pipes and a number of empty capsules.

15 On 21 August 2014, the police arrested the appellant in his car. He was in possession of 18 grams of the steroid Stanozolol, a mobile phone (summary charge 40) and $100 cash (summary charge 37). He made a no comment record of interview.

16 The appellant spent 117 days in custody until 15 December 2014, when he was bailed to residential rehabilitation with RecoverOz. He remained there for 162 days as an in-patient. His bail was then varied and he returned to live with his parents and obtained full-time employment with Citywide driving a garbage truck. He continued to attend RecoverOz voluntarily for a further 4 months.

17 The appellant indicated a plea of guilty prior to a contested committal on 26 May 2015. That committal concerned unrelated charges.

18 The appellant was born in Sydney in July 1982. When he was 18 years old, his 14 year old brother died in a motor vehicle accident. The death had a dramatic impact upon the morale at home and all members of the appellant's family suffered profound grief.

19 The appellant's family relocated to Melbourne when he was very young. He completed year 12 and initially worked in the security industry before losing his licence. He then became a truck driver, and has also worked as a personal trainer and traffic controller.

20 The appellant commenced using steroids at the age of 24 when he worked in the security industry. At about the same time, he commenced using MDMA. He first used ice at the age of 26, and his ice use escalated to a significant addiction. He also used cocaine on an intermittent basis.

21 At the time of the offending, he was 32 and lived at home with his parents. He had ceased employment and was trafficking to fund his drug habit.

22 At the time of the plea, the appellant was still employed by Citywide. He tendered a letter from that company in support of his plea.

23 He also tendered a letter from RecoverOz which stated that he had: never presented with 'dirty urine'; never caused any trouble; been a 'model patient'; and been clean of drugs since the day that he attended RecoverOz.

24 He also tendered a report by a psychologist, Tim Watson-Munro, which stated that the appellant satisfied the criteria for a diagnosis of major depression with features of an anxiety disorder.

25 The appellant had a number of prior convictions or findings of guilt. Relevantly, on 8 April 2011, he was convicted of being in possession of a handgun without a licence and other weapons offences, for which he received an aggregate fine of $8,000, and on 16 October 2013, he was found guilty of possessing a drug of dependence, for which he received a fine of $200 without conviction.

Submissions and observations on the plea about appropriateness of a CCO

26 At the plea hearing on 13 August 2015, counsel for the appellant urged the judge to have the appellant assessed for a community correction order ('CCO') and impose a sentence of 'time served plus a [CCO]'. Counsel submitted that such a sentence was appropriate in the light of: the significant recovery that the appellant had made at the time of the plea; his significant period of pre-sentence detention; and the 162 days he had spent as an in-patient at RecoverOz.

[O]n the basis that of course one has the opportunity of a sentence of up to two years as well as a community correction order, I share your view that anybody who has taken the step of going into residential rehabilitation and who has spent time, as he has, drug-free is an important step in their lives and that should obviously be something to take into account.

I will have him assessed for a community correction order but, as I say, with respect to the charges to which he has pleaded guilty, I'm not going to sentence him. I'll remand him in custody. I think the overwhelming likelihood is that there will be further custody, but as to the length of it, I really need to get that further information.

28 Counsel for the Crown conceded that the items found at the home of the appellant's parents did not constitute a functioning laboratory for the purposes of manufacturing drugs.

29 The judge adjourned the hearing to the afternoon of the same day in order to allow for the appellant to be assessed for a CCO. When the hearing resumed, a Community Correction Order Assessment Outcome Report ('CCO Report') was tendered. The CCO Report stated that the appellant was suitable for a CCO subject to certain conditions relating to community work, treatment and rehabilitation for drugs and mental health and supervision. The CCO Report stated that the appellant had agreed to comply with these conditions.

30 The following exchange took place between the judge and counsel:

[Counsel for the appellant]: Your Honour, he's been assessed for a community correction order and in the circumstances we say that he's working and he's a perfect candidate for an extended CCO, given the pre-sentence detention. ... Plus the residential rehabilitation that he attended on his own volition. Your Honour, my friend doesn't seek an immediate term of imprisonment and I urge you not to gaol Mr Gul.

[Counsel for the Crown]: As far as the Crown's view on sentence, since it has been raised by my friend, the position is that the Crown doesn't say that an immediate term of imprisonment is the only appropriate sentence. As has been discussed a cocktail of a community correction order and a term of imprisonment is what the Crown is saying is within the range.

...

HIS HONOUR: I think the inevitability is a further period of imprisonment and accordingly I will remand Mr Gul in custody. I certainly don't shut out the prospect of a community correction order at the completion of a further term of imprisonment, however, and that is something to which I will refer.

31 The judge stated that the appellant was entitled to have his guilty plea taken into account in his favour and that the sentence he would impose was far less than would have been the case had the appellant been found guilty after a trial.[1] The judge also accepted that the appellant's plea indicated true remorse for his actions.[2]

32 The judge cited Mr Watson-Munro's report which stated that, at the time of the appellant's offending, he was suffering a significant addiction to ice, which had a dramatic impact upon his judgement and impulse control.[3] The judge stated that, based on the letter from RecoverOz and Mr Watson-Munro's report, he was, on balance, satisfied that the chances of the appellant's rehabilitation, particularly with respect to his drug addiction, were reasonably good.[4]

33 The judge also observed that the appellant's parents had been in court and supporting him during the plea.[5]

34 In relation to charge 1, the judge noted that the total quantity of the anabolic and androgenic steroidal agents seized from the appellant's residence - 4962.5 grams - was only approximately 37.5 grams short of the commercial quantity threshold of 5 kilograms. He further noted that the applicable traffickable quantity threshold was 500 grams.[6]

35 The judge further stated that he was required to take into account the principle of general deterrence, which he said was 'of considerable importance' given the variety of drugs seized and, in particular, the amount of drugs the subject of charge 1.[7]

36 The judge also stated that specific deterrence was of some modest importance given the appellant's prior conviction for possession of a drug of dependence.[8]

37 The judge then stated that he was required to consider the question of the protection of members of the community from the appellant and bear in mind the likelihood of the appellant's re-offending, which he said he 'hope[d] to be modest', if the appellant remained drug-free upon his release from prison.[9]

These are without doubt serious offences and in all the circumstances with respect to the five major charges, I have no alternative to the imposition of custodial sentences.[10]

Ground 2: Did the judge consider a CCO as a sentencing option?

39 Section 5(4C) of the Sentencing Act 1991, provides:

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.

40 The appellant submitted that s 5(4C) was expressed in mandatory terms and provided, in effect, that, before imposing a sentence of imprisonment, a judge must have regard to whether a CCO could achieve the purposes for which the sentence was imposed. The appellant also relied on the following statement of this Court in Boulton v The Queen:[11]

What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:

(a) the purposes for which sentence is to be imposed on the offender; and

(b) whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.[12]

The sentencing court should ask itself a question along the following lines:

Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?[13]

42 According to the appellant, the process of deliberation required by s 5(4C) of the Sentencing Act 1991 and Boulton was particularly relevant in this case, having regard to the fact that: the CCO Report had been ordered; the CCO Report was positive; the appellant consented to the CCO; counsel for the appellant had submitted that a CCO was appropriate; the Crown conceded that a 'cocktail' of a CCO and a term of imprisonment was within range; and the appellant had served 117 days pre-sentence detention. The appellant contended that the judge had failed to engage in that process of deliberation and that had he done so, it was likely that a CCO would have been imposed in all the circumstances.

44 As contended by the Crown, s 5(4C) of the Sentencing Act 1991 only mandates that a sentencing judge 'consider' the matters set out in that section and does not require the judge's sentencing remarks to specifically refer to the section or give reasons for refusing to order a CCO. This is to be contrasted with s 6AAA, which mandates that a court make specific mention in the sentence of any discount given for a plea of guilty.

45 In the absence of an express statutory obligation, a sentencing judge is not required to refer to every sentencing consideration and error cannot be imputed merely because he or she has failed to refer to a particular consideration.[14] It can usually be assumed that a sentencing judge has taken into account those matters raised before the court and has chosen to reflect them in the ultimate sentence, even though he or she has not explicitly said how or to what extent they have been taken into account.[15] However, where the sentencing consideration is an obvious one which should have led to a significantly different disposition, it may sometimes be concluded that the failure to refer to that consideration in the sentencing remarks indicates that the sentencing judge failed to take it into account.[16]

46 In the present case, although the judge did not refer to s 5(4C) in his sentencing remarks, his statement that 'I have no alternative to the imposition of custodial sentences'[17] clearly indicates that he had that provision in mind.

47 As for the absence of a reference in the sentencing remarks to a CCO as a sentencing option, given the extensive discussion of that option on the plea, the omission is surprising. The sentencing remarks would have been more transparent and informative if the judge had explained why he rejected that option. As the Crown candidly acknowledged in its oral submissions, having regard to the submissions on the plea, including the Crown's indication that a combination of a term of imprisonment and a CCO was an appropriate sentencing disposition, it was unusual that the judge did not expressly mention such a disposition in his sentencing remarks.

48 Notwithstanding the above, in our opinion, the judge's failure to refer to a CCO as a sentencing disposition does not mean that it can reasonably be inferred that the judge had no regard, or no proper regard, to the appropriateness of a CCO. This is because, as the discussions on the plea that are set out at [26] to [30] above took place only a week prior to sentencing, it is highly unlikely that the judge would have neglected to give due consideration to whether a CCO was an appropriate sentencing disposition. This is particularly so having regard to the fact that the judge had ordered a CCO assessment. Also, as a CCO (on its own or combined with a term of imprisonment) was the only alternative to imprisonment that was discussed on the plea, the judge's conclusion that he had 'no alternative' to a custodial sentence clearly indicates that he considered the possibility of imposing a CCO.

49 Although the judge did not, in terms, refer to the reasons why a CCO was not ordered, it was implicit that, in all the circumstances, he did not view that sentencing disposition as warranted. The judge's sentencing remarks referred to: the need for general deterrence given the variety of drugs and the quantity of drugs in charge 1; specific deterrence given the drug-related prior conviction; protection of the public; the serious nature of the offences; and the fact that the evidence on the plea established that at the time of the offending, the appellant had an established and entrenched drug addiction.

50 To the extent that the appellant's case was based on the proposition that, as the judge ordered a CCO assessment and that assessment was positive, there was a presumption that such an order would be made, it fundamentally misconceived the provisions of the Sentencing Act 1991 dealing with CCOs and the reasons in Boulton. As stated by Priest JA (with whom Ashley JA agreed) in Hutchinson v The Queen:[18]

Acknowledging that a CCO might be appropriate 'even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment', it should not be thought that Boulton offers a 'Get Out of Jail Free' card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, 'to punish the offender to an extent and in a manner which is just in all of the circumstances'. There will be cases - indeed, many cases - where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just. At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.[19]

51 Similarly, in Atanackovic v The Queen,[20] Weinberg, Kyrou and Kaye JJA stated:

There is nothing in [Boulton] that alters the longstanding principles for assessing the seriousness of individual offences and the weight to be given to particular sentencing considerations in relation to them. Drug offences are intrinsically serious and even though specific deterrence may not be prominent for some offenders, general deterrence will ordinarily be a primary consideration. Offending of the nature and scale undertaken by the appellant in the present case has traditionally been dealt with by a lengthy period of imprisonment and there is nothing in Boulton that requires a different sentencing disposition in the present case.

We would add that, contrary to the assumption that appears to underpin some submissions that have been made to this Court since Boulton, that case, where it applies, has not elevated CCOs to the status of 'sentencing option of choice' for any particular offences. In saying that CCOs may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, Boulton was simply making the obvious point that, given the multifaceted features of CCOs, a CCO may be more appropriate than imprisonment across a broad range of offences. Likewise, the statement in the case that a CCO, where appropriate, should be preferred to imprisonment, is a salutary reminder of the longstanding principle of parsimony. Such statements do not create any presumption that a CCO is suitable for any particular offence, still less that it is appropriate in the circumstances of any particular offender. The appropriate sentencing disposition in each case will depend on the statutory provisions and sentencing considerations that are pertinent to that case, informed by relevant case law.[21]

52 It follows from the above that ground 2 must be rejected.

Ground 3: Was the sentence manifestly excessive?

53 The appellant submitted that the individual sentences on charges 1-4, the orders for cumulation on charges 1-4 and the resulting head sentence and non-parole period were manifestly excessive.

54 The appellant contended that the judge had given too much weight to general deterrence. According to him, although general deterrence was a relevant sentencing consideration, there was nothing in the circumstances of the offending, including the offending constituting charge 1, which warranted the judge giving 'considerable' weight to it.[22]

55 The appellant argued that the judge gave insufficient weight to the appellant's rehabilitation as at the date of the plea and his overall prospects of rehabilitation. According to the appellant, he had undergone considerable rehabilitation and his prospects were very favourable. The appellant also submitted that the judge gave no or insufficient weight to: the appellant's early guilty plea; his time in custody; his rehabilitation to date; his prospects of rehabilitation; his employment; the support of his parents; his remorse; his limited criminal history; and his suitability for a CCO.

56 The appellant relied on this Court's decision in Yacoub v The Queen[23] in support of his contention that the sentence imposed on charge 1 was manifestly excessive. That case concerned an offender who had pleaded guilty to a number of charges, including trafficking in a commercial quantity of steroids (7.7 kilograms). The drugs cost $13,000, but might have sold in smaller batches for up to $90,000. The offender was 40 years old when he was sentenced and had five young children, the eldest being 10 years old. He had been involved in body building since the mid-eighties and had participated in a number of competitions for that sport. He commenced using steroids in that context. He was remorseful, came from a good family and had worked hard, regularly and successfully in family businesses since leaving school at 13 years of age. Assets worth in excess of $1 million were potentially at risk of forfeiture due to his guilty plea. A number of character witnesses gave impressive evidence on his behalf. He had 10 prior convictions or findings of guilt. The last of these was for possession of a drug of dependence, a steroid. That charge was adjourned without conviction. The sentencing judge found that the offender's prospects of rehabilitation were reasonable. The judge sentenced the offender to 18 months on the commercial trafficking charge.

57 This Court rejected the offender's contention that the individual sentences and the total effective sentence were manifestly excessive. In relation to the commercial trafficking charge, Eames JA (with whom Maxwell P, Buchanan, Vincent and Callaway JJA agreed) relevantly stated:

Having regard to the fact ... that the maximum penalty for the offence was 25 years' imprisonment, it is difficult to see how a sentence of 18 months' imprisonment for an offence that involved trafficking in one and a half times the commercial quantity of a drug of dependence could constitute the sentence manifestly excessive, and, in my opinion, it was not. [24]

58 The appellant observed that, in contrast to the circumstances in Yacoub, he was not charged with possession of a commercial quantity of steroids, yet received double the sentence imposed on the offender in Yacoub.

59 The Crown submitted that the sentence imposed on the appellant was not outside the range reasonably available to the judge. This was said to be so in the light of: the appellant's prior convictions; the fact that he was not young; the fact that there were no Verdins factors urged upon the judge; and the amount and variety of drugs seized. According to the Crown, there was little to mitigate the offences apart from the appellant's plea of guilty.

60 The Crown also submitted that the judge was required to give 'considerable' weight to general deterrence in this case given the circumstances before him. According to the Crown, the appellant's argument to the contrary ignored the fact that the quantity of steroids seized was relatively very large.

61 The Crown fairly acknowledged the appellant's endeavours towards rehabilitation and accepted that the efforts he had made exceeded those of many other offenders who were addicted to drugs.

62 The Crown contended that Yacoub did not set a benchmark for steroid trafficking cases. The Crown also observed that there were a number of mitigating factors relevant to the sentence imposed in Yacoub which were not relevant in the present case. In any case, the Crown contended that comparable cases such as Yacoub could only provide limited assistance to the court.[25]

63 In our opinion, the sentence of 3 years' imprisonment for charge 1 is manifestly excessive. This is because it fails to properly reflect the powerful combined effect of the mitigating circumstances in favour of the appellant, particularly the exceptional steps that he had undertaken towards rehabilitation. Not only did he undertake treatment as an in-patient at RecoverOz in accordance with the conditions of his bail, but he voluntarily attended there as an out-patient for four months. By doing so, he overcame his drug habit, obtained stable employment with Citywide and continued to enjoy the support of his family.

64 In these circumstances, the appellant's prospects of rehabilitation could only be described as excellent. By assessing them as 'reasonably good' the judge understated the significant and sustained progress that the appellant had made in remaining drug-free and becoming a worthwhile member of the community, and thus failed to give rehabilitation the substantial weight that it required.

65 The other important mitigating factors in the present case included the appellant's early guilty plea, his remorse and his acceptance of responsibility for his offending. These factors, combined with the appellant's rehabilitation, warranted a large sentencing discount.

66 Although the appellant did not fall to be sentenced as a first time offender, his prior offences were of limited relevance. He had never served time in prison previously and there was every indication that he had learnt his lesson. The judge correctly concluded that specific deterrence was of 'modest importance'. While he was right to identify general deterrence as an important sentencing consideration which warranted considerable weight, he was required to take it into account in the context of the powerful mitigating circumstances to which we have referred. The lengthy sentence that the judge imposed on charge 1 suggests that he failed to do so and thereby gave general deterrence too much weight.

67 We accept that the appellant's offending in relation to charge 1 was serious. However, this and the other trafficking offences were constituted by possession of drugs for the purposes of trafficking and it was common ground that the appellant did not engage in the manufacture of drugs for sale. On the basis of the small amounts of cash that were found in the appellant's possession, it can be inferred that his trafficking activities were directed at funding his drug habit rather than wealth generation. As the appellant pointed out, there was no evidence before the judge of the value of the steroids in his possession.

68 While we acknowledge that comparisons with other cases provide limited, if any, assistance, it is difficult to reconcile the sentence of 3 years' imprisonment that was imposed on the appellant on charge 1 for trafficking 4.9 kilograms of steroids with the sentence of 18 months' imprisonment that was imposed on the offender in Yacoub for trafficking 7.7 kilograms of steroids. This is particularly so having regard to the similarities in the mitigating factors in both cases and the fact that the offence in Yacoub carried a maximum penalty of 25 years.

69 As the sentence imposed on charge 1, which we have found to be manifestly excessive, was the base sentence, it follows that the total effective sentence is manifestly excessive.

70 For the above reasons, the appeal will be allowed and the appellant resentenced as follows:

Trafficking in a drug of dependence [DPCSA s 71AC]