Haddara v The Queen [2016] VSCA 168

Court of Appeal (Vic)|2016-07-18|Before: Mr J, Maxwell P, Redlich JA, Priest JA, Beach JA

CRIMINAL LAW - Sentence - Trafficking in methylamphetamine ('ice') - Sentence of two years' imprisonment - Whether sentencing judge took into account well-known harmful consequences of ice - Harmful qualities of drug not a relevant sentencing consideration - Matter for legislature whether harmful consequences of ice should be addressed - Sentencing error established - Whether applicant's psychological condition given insufficient weight - Sentence not manifestly excessive - No different sentence should be imposed - Appeal dismissed - R v Pidoto [2006] VSCA 185; (2006) 14 VR 269; Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143 applied.

CRIMINAL LAW - Sentence - Trafficking in methylamphetamine - Prevalence of offence - Common knowledge as to increased prevalence of offence - General deterrence to be given greater emphasis by gradual increase in sentences - R v Downie and Dandy [1998] 2 VR 517; Ashdown v The Queen [2011] VSCA 408; (2011) 37 VR 341 applied.

1 On 10 March 2015, the applicant pleaded guilty in the County Court to two charges of trafficking a drug of dependence,[1] the drugs being methylamphetamine (charge 1) and cannabis (charge 2). He also pleaded guilty to a charge of obtaining property by deception[2] (charge 3), and to two summary charges of dealing with property suspected of being the proceeds of crime[3] and possessing a prohibited weapon.[4]

2 Charge 1, trafficking in methylamphetamine - which is commonly and colloquially called 'ice' - related to a period between 18 September 2013 and 18 March 2014;[5] and charge 2, trafficking in cannabis, related to a single day, 19 November 2013. The charge of obtaining property by deception, charge 3, was committed on 6 December 2013. Summary charge 6, dealing in property suspected of being the proceeds of a crime, relates to two laptop computers and six iPads found in the applicant's possession on 18 March 2014; and summary charge 7, possessing a prohibited weapon, relates to an extendable baton and a set of nunchacku, found in his possession on the same date.

3 On 29 September 2015, the applicant was sentenced to be imprisoned for two years, with a non-parole period of 14 months, according to the following table:

Trafficking in a drug of dependence (methylamphetamine)

Dealing with property suspected of being proceeds of crime

3 years' imprisonment with non-parole period of 2 years

Forfeiture order. Pecuniary penalty order in the sum of $38,600.

4 The applicant seeks leave to appeal against the sentence imposed on the following grounds:

The individual sentences, total effective sentence and non-parole period are manifestly excessive.
The learned sentencing judge erred in rejecting on balance that at the time of the offending the applicant was less blameworthy due to his post-traumatic stress disorder.
The learned sentencing judge erred by having regard:

(i) to the nature and extent of the harm that methylamphetamine causes, both directly to users of the drug and indirectly to the community as a whole; and

(ii) to whether methylamphetamine is, by those measures, more or less harmful than another drug of dependence.

5 On 1 March 2016, Maxwell P referred determination of the application for leave to appeal to a full court.

6 For the reasons that follow, leave to appeal should be granted on ground 3, but the appeal dismissed. We would otherwise refuse leave to appeal.

7 Before turning to a consideration of the grounds of appeal, it is necessary to describe the applicant's offending in moderate detail.

8 In September 2012, police commenced an investigation - Operation Skyborne - into the trafficking of methylamphetamine and firearms by an organised crime syndicate operating in the western suburbs of Melbourne. Investigators utilised covert operatives to purchase drugs and firearms from members of the syndicate. Telephone intercepts were used to gather evidence of drug trafficking activities. Optical surveillance and listening devices were also utilised.

9 The optical surveillance and listening devices were installed in a factory in Williamstown North, belonging to Fadi Haddara, who was the head of the syndicate. He used menials, intermediaries and associates to conduct drug trafficking and other criminal activities. Associates included Dung Pham, Katrina Faulkner, Aysun Hanay, Fadi Afram, Meeishyan Quach, Khaled Kaddour, Elia El Azar and Mohamed El Achkar.

10 In the course of the police investigation, the applicant became a person of interest. Police obtained a telecommunications warrant[6] in November 2013 and commenced intercepting his telephone calls. The calls revealed that he was actively involved in the sale of methylamphetmine. Charge 1 relates to sales of 105.1 grams of methylamphetamine to a covert operative. Between 18 September 2013 and 15 March 2014, the applicant sold no less than 105.1 grams of methylamphetamine to the undercover operative. Nine discrete sales were, however, relied upon. The case against the applicant was not limited, however, to the transactions involving that amount, but embraced a continuing trade and business in the transmission of drugs from source to consumer.

11 Generally, evidence of the applicant's drug trafficking was obtained through:

• direct transactions between the applicant and a covert operative;

• audio recordings of conversations between the applicant and a covert operative;

• telephone intercept material of the applicant discussing and arranging drug transactions;

• surveillance of the applicant whilst drug transactions were being conducted; and

• evidence located during the execution of search warrants.

12 Between 25 May 2013 and 15 March 2014, six covert operatives acting under a controlled operations authority[7] conducted 39 transactions with the following offenders: Khaled Kaddour; Ziad Haddara ('Antonio Wilson'); Casey Faulkner; Elia El Azar; Aysun Hanay; Rabih Haddara; Wally Rohayem; Mustafa Zogheib; Ali Elissa; Kurt Barrett; Mohammed El Achkar; Meeishyan Quach; and Minh Pham.

13 The covert operatives purchased a total of 395 grams of methylamphetamine, two handguns and a sawn-off rifle, at a total cost of $155,250.

14 In the applicant's case, he made a number of sales of methylamphetamine to a particular covert operative, Covert Operative 273 (for convenience, 'the operative').

First sale by the applicant to the covert operative

15 On Wednesday, 18 September 2013, at 4.40pm, the operative met with the applicant in the car park of the McDonald's restaurant in Sayers Road, Truganina. He entered a silver Mercedes Benz being driven by the applicant. The applicant said that they should not talk on the phone, and from now on if he wanted to purchase 'gear', the operative should deal only with the applicant. The applicant asked the operative how much he wanted that day. The operative replied that he wanted a 'quarter' (seven grams). He produced $2,800 cash and handed it to the applicant. The applicant counted the cash and said that he would go somewhere and return. He then left in his vehicle.

16 At 5.05pm, the applicant returned in another vehicle, a black Toyota RAV4. The operative entered the vehicle and, whilst shaking his hand, the applicant handed the operative a small package. Once he opened the package, the operative observed a 'Glad' plastic bag containing a clear crystal substance. The applicant told the operative that every time he wanted to buy, he should ring the applicant and tell him to come for a 'coffee'. The operative left the applicant's vehicle and left the scene.

17 The clear crystal substance was later analysed. It weighed seven grams and contained 60 percent methylamphetamine.

18 A few days later, on Sunday, 22 September 2013, at 11.54am, the operative again met with the applicant at the car park of the McDonald's in Truganina. The operative entered the vehicle, a silver Mercedes Benz being driven by the applicant, and placed $1,800 into his hand. The applicant shook hands with the operative, releasing a parcel wrapped in white tissue into his hand. The operative unwrapped the tissues and observed a plastic bag containing a crystal substance wrapped in a white tissue (seven grams of methylamphetamine). The applicant stated that the covert operative could meet him there at McDonalds and order whatever quantity he liked, 'quarters', 'halves' or 'a full bag'. The applicant then left the area.

19 The clear crystal substance was later analysed. It weighed seven grams and contained 60 percent methylamphetamine.

20 A week later, on Sunday, 29 September 2014, at 11.25am, the operative met with the applicant at the carpark of the same McDonalds restaurant. He entered a vehicle, a silver Mercedes Benz being driven by the applicant, and handed him $2,800 wrapped with a black rubber band. The applicant removed the black rubber band and handed it back to the operative telling him to keep it for next time. He said that the operative would just have to tell him 'the same', which he knew to be seven grams (of methylamphetamine). If he said 'a half', the applicant said he would know it to be a 'half bag'. He guaranteed it to be 'one million percent' the best. The applicant confirmed that the price for 'a half' (14 grams of methylamphetamine) was $5,000. The applicant reached into the pocket of his jacket and removed a clear plastic bag, which was placed inside another plastic bag, containing a clear crystal substance (seven grams of methylamphetamine) and handed it to the operative.

21 The clear crystal substance was later analysed. It weighed seven grams and contained 60 percent methylamphetamine.

22 On Saturday, 5 October 2013, at 12.05pm, the operative once more met with the applicant at the McDonalds restaurant. The operative entered a blue Nissan Navarra being driven by the applicant. Also in the vehicle was 'Carlos'. The operative sat in the back seat of the vehicle and handed $2,800 to the applicant, who then counted the money. The applicant then handed the operative a clear plastic bag which was placed inside another similar bag with a clear crystal like substance inside (seven grams of methylamphetamine).

23 The clear crystal substance was later analysed. It weighed seven grams and contained 70 per cent methylamphetamine.

24 The following Saturday, 12 October 2013, at 11.57pm, the operative met with the applicant and Wally Rohayem at the car park of the McDonalds restaurant, Truganina. The operative entered a silver Mercedes Benz being driven by the applicant. The operative handed the applicant $2,800. The applicant indicated that the drugs were sitting in the centre console of the car, located between the two front seats. The operative reached over and picked up a clear plastic bag, which was placed inside a similar bag containing a clear crystal substance, and placed it in his pocket (seven grams of methylamphetamine). The applicant stated that he was happy to meet the operative a bit closer to the city and then suggested that the next time they met it could be at the McDonalds restaurant carpark located on the corner of Blackshaws Road and Millers Street, Altona North.

25 The clear crystal substance was later analysed. It weighed seven grams and contained 60 percent methylamphetamine.

26 Less than a week later, on Friday, 18 October 2013, at 12.03pm, the operative met with the applicant at the car park of the McDonalds restaurant located on the corner of Millers Road and Blackshaws Road, Altona North. The operative entered a silver Mercedes Benz being driven by the applicant and handed him $2,800 in cash. The applicant removed a clear plastic bag, which was placed inside similar bag containing a clear crystal substance, and handed it to the operative (seven grams of methylamphetamine).

27 The clear crystal substance was later analysed. It weighed seven grams and contained 70 percent methylamphetamine.

28 Several days later, on Thursday, 24 October 2013, at 1.34pm, the operative again met with the applicant and Wally Rohayem, at the car park of the McDonalds restaurant, Truganina. The operative entered the rear seat of a black Toyota Rav4 being driven by the applicant. Once in the vehicle, the applicant handed the operative a parcel wrapped in white tissue. The operative unwrapped the parcel and observed a clear plastic bag containing clear crystal substance (seven grams of methylamphetamine). The operative then handed $2,800 to Rohayem who handed the money to the applicant.

29 The clear crystal substance was analysed. It weighed seven grams and contained 70 per cent methylamphetamine.

Telephone monitoring reveals trafficking during November 2013 to March 2014

30 On Tuesday, 12 November 2013, a warrant was issued pursuant to the Telecommunications (Interception and Access) Act 1979, authorising the monitoring of three mobile telephone services utilised by the applicant. The calls revealed that between November 2013 and 18 March 2014, the applicant was trafficking in methylamphetamine on a daily basis.

31 During the month of November 2013, several calls reveal that the applicant received orders for methylamphetamine. The applicant was also heard making arrangements for the collection of money owed for methylamphetamine that he had supplied. In a number of those calls, the applicant threatened violence; and on another occasion, it was revealed that the applicant had bound and assaulted a customer who failed to pay his drug debt.

Eighth sale to covert operative - methylamphetamine (part of charge 1) and cannabis (charge 2)

32 On Tuesday, 19 November 2013, at 11.45am, the operative met with the applicant at the car park of the McDonalds restaurant, Truganina. The operative entered a silver Mercedes Benz being driven by the applicant and handed him $10,000. The applicant instructed the operative to follow him to his home address to collect the drugs. At an address in Vanderbilt Avenue, Truganina, the applicant produced a large bag of clear crystal substance and weighed it on a set of digital scales. The operative observed the weight on the digital scales to be 28.6 grams before the applicant placed the bag inside another 'Glad' snap-lock bag and handed it to him. The applicant said that he does not smoke 'ice' and only smokes 'chuff' (cannabis). He said he could sell the operative an ounce for 28 ($280). The applicant took a third of the cannabis from a bag and placed it inside a similar bag before wrapping it with a piece of clear 'Gladwrap'. He stated that his friend had a factory and 'chuff' would be ready in a week. The applicant passed a small Glad snap-lock bag, placed inside a similar bag containing a small quantity of cannabis, to the operative (charge 2).

33 The operative then followed the applicant to the lounge room where they talked about accessing firearms. The applicant stated that he could secure a 9mm semi-automatic Beretta and a .38 revolver. He stated that he would send a text message with a code word 'REV'-price' (referring to the .38 revolver) and 'SEM -price' (referring to 9mm semi-automatic Beretta). The applicant said that he could get guns from the 'Asian people'.

34 The clear crystal was later analysed. It weighed 28.1 grams and contained 50 per cent methylamphetamine. The cannabis was analysed and weighed 4.6 grams.

35 On Monday, 25 November 2013, the operative telephoned the applicant. He operative asked if the applicant had any news in relation to the firearms that they had discussed. The applicant said that he was waiting for a friend who was supposed to come down from Bendigo. He had not come and the applicant was unable to reach him by telephone. The applicant stated that he had 'two cars' (referring to two other handguns), but could not sell those as he needed them for himself. He made several phone calls over the following days in an attempt to source a firearm for the covert operative.

36 On Friday, 6 December 2013, at 4.50pm, the operative went to the address at Vanderbilt Avenue, Truganina, and had a conversation with the applicant about sourcing two handguns. He handed the applicant $10,000. The applicant stated that a new revolver would be $9,500. He said that he had to go and get it and would call once he was in possession of it. The operative and the applicant had several text message exchanges over the following four hours, which culminated in the applicant telling the operative to go home because his supplier had taken the money and did not have a gun. The applicant did not supply the firearm to the operative and the $10,000 cash has not been recovered.

37 Five days later, on Wednesday, 11 December 2013, at 6.25pm, the operative met with the applicant at the car park of the McDonalds restaurant, Truganina. The operative entered a silver Mercedes Benz being driven by the applicant. The applicant had a conversation with the operative about liquid pseudoephedrine. He stated that he was willing to purchase three litres of 'liquid pseudo' for $10,000, and would pay $20,000 for five litres. The applicant stated that he had access to 'a professional cook' and he needed liquid pseudo so he can make as much 'ice' as he wanted. The applicant then stated that he had handed the $10,000 given by the operative on 6 December to an associate to source his firearms, but that the associate was not answering his calls. The prosecution's case was that the applicant deceived the operative into paying him $10,000 for a gun that the applicant did not have access to or any intention of supplying (charge 3).

38 During the month of December 2013, the applicant was very busy trafficking in methylamphetamine. He was heard taking orders for methylamphetamine on no fewer than 34 occasions. On at least 17 occasions he was heard discussing with various customers outstanding payments for methylamphetamine that the applicant had supplied on credit.

39 Similarly, during January 2014, the applicant was heard receiving orders for methylamphetamine on no fewer than 15 occasions. There were no fewer than 13 intercepted calls in which the applicant was seeking to recover outstanding cash for methylamphetamine that he sold on credit. In some of these calls, the applicant was heard threatening customers.

40 During February 2014, one call was intercepted where there was a complaint about the quality of the methylamphetamine that the applicant had supplied.

41 On Saturday, 15 March 2014, at 4.50pm, the operative went to the applicant's home address in Vanderbilt Avenue, Truganina, to purchase an 'ounce' (28 grams) of methylamphetamine. The operative met the applicant in the garage area. The operative asked the applicant if the price of $27,00 for three litres (referring to liquid pseudoephedrine) was 'okay' with him. The applicant stated that the money was not a problem but he needed to check the quality of the precursor. He then requested a small sample of five to six milligrams of 'that thing' (referring to the pseudoephedrine). The operative then handed $10,000 to the applicant, who counted it and instructed the operative to return to his car for a minute. A short time later the applicant walked to the operative's car and handed him a parcel wrapped in white tissues. The parcel contained a Glad snap-lock bag containing a clear crystal substance, purported to be 28 grams of methylamphetamine.

42 The clear crystal was analysed. It weighed 27.7 grams and contained 80 per cent methylamphetamine.

43 Only a few days after the ninth sale, on Tuesday, 18 March 2014, a search warrant was executed at the applicant's premises in Vanderbilt Avenue, Truganina. Police seized two laptop computers and six iPads (summary charge 6); one extendable baton and one set of nunchacku (summary charge 7); and two snap-lock bags containing a white crystal substance (totalling 37.3 grams of methylamphetamine).

Ground 3 - Did the judge err by having regard to the harmful qualities of ice?

44 It is convenient to turn first to the third ground of appeal. For reasons we will develop, we are of the view that the ground is made out, but that no different sentence should be imposed. We would thus grant leave to appeal on ground 3, but dismiss the appeal.[8]

45 Ground 3 contends that the judge erred by having regard to the nature and extent of the harm that methylamphetamine causes, both directly to users of the drug and indirectly to the community as a whole; and to whether methylamphetamine is, by those measures, more or less harmful than another drug of dependence. Relying on Pidoto,[9] the applicant submitted that in sentencing for an offence under the Drugs, Poisons and Controlled Substances Act 1981 ('Drugs Act'), it is, in general, not permissible to have regard, first, to the nature and extent of the harm which a particular drug causes, either directly to users of the drug, or indirectly to the community as a whole; or, secondly, to whether the particular drug of dependence is, by those measures, more or less harmful than another drug of dependence. It was submitted that it is apparent from the judge's sentencing reasons that, contrary to Pidoto, the sentencing judge had regard to the particular harmful qualities of methylamphetamine.

46 Initially, the respondent submitted that the judge's comments concerning the harm caused by illicit drugs in general, and methylamphetamine in particular, were general in nature and did not offend against Pidoto principles. It had been argued in the respondent's written case that the judge did not seek to draw a comparison between the relative harmfulness of methylamphetamine as compared with other illicit drugs, and did not aggravate the sentence imposed by reason of any such consideration; and, further, that the judge simply used the specific circumstances of the offending conduct in this case to support the 'wholly unremarkable' notions that principles of general deterrence are of importance to this kind of offending, and that denunciation and just punishment are important for this kind of offending. During oral argument, however, although he did not concede the point, the Director candidly (and realistically) acknowledged that some of the judge's observations were problematic.

47 Material before the sentencing judge indicated that the applicant commenced using both methylamphetamine and cannabis around the time of his offending in 2013. He not only acquired ice for himself, but trafficked 'in order to generate some finance'. Against that background, in her reasons for sentence the judge said:[10]

The circumstances of Charge 1 reveal a very serious example of trafficking. The offending was for a period of five months. There was no indications [sic] that it would not have continued if it had not been detected. For the duration of the period this was an ongoing business. The volume of sales was high. It was part of a large scale drug operation. Within that you operated your own network of clients and you ran your own successful drug business, carrying out various roles yourself.

Even accepting that your participation was to fund your own drug use, it was also on your own admission to generate to some finance or for profit. On any scale trafficking is a serious offence given the societal problems that these kind of drugs cause. Trafficking of drugs, especially ice, affects the health and lives of many in the community. This particular drug has addictive qualities and is often productive of extreme violence and dangerous behaviour. The impact of the availability and use of ice on the community cannot be underestimated.

Principles of general deterrence are of importance to this kind of offending. Those who engage in the business of trafficking drugs such as ice should be aware that if they are caught they will be severely punished. The community demands denunciation and just punishment for this kind of offending.

48 At least four propositions relevant to ground 3 were, we think, advanced by the sentencing judge in these passages of her sentencing remarks:

• first, although all trafficking in drugs affects 'the health and lives' of many in the community, ice 'especially' has those effects;

• thirdly, ice is often productive of extreme violence and dangerous behaviour; and

• fourthly, the impact of the 'availability' and 'use' of ice cannot be 'underestimated' (scil, overestimated).

Thus, so it seems to us, the judge considered ice to be particularly deleterious to health and well-being. Given its 'availability', ice is ubiquitous and its 'use' prevalent, in circumstances where it has highly addictive qualities and often produces extreme violence and dangerous behaviour.

49 In light of the experience of criminal courts - where ice use is often a factor in the commission of offences such as murder;[11] manslaughter;[12] other crimes of violence;[13] culpable and dangerous driving causing death (or serious injury) and like offences;[14] aggravated burglary (and associated offences);[15] and other crimes[16] - we sympathise with the sentiments expressed by the judge. Methylamphetamine is a scourge on society. It is the experience of judges that ice potentially is extremely harmful to the individuals who use it. Almost daily, judges in criminal courts are told that serious crimes were committed by offenders who, as a result of the use of ice, suffered severe mood swings, paranoia and psychosis, reflected in extreme aggression and violence. It is also well-known to judges who sit in criminal courts that the violent, dangerous and reckless behaviour that the drug often provokes in those who use it causes immeasurable harm to the community, which suffers as a result of such behaviour.

50 As we have indicated, counsel for the applicant submitted that it is plain from the passages above that, contrary to principles laid down Pidoto, the sentencing judge had regard to the particular harmful qualities of methylamphetamine. It was implicit in the Director's submission that if her Honour did take into account the dangerous characteristics of methylamphetamine, applying Pidoto, we would be bound to conclude that her Honour erred.

51 In Pidoto, an issue was raised as to whether, when sentencing for trafficking in a drug of dependence, it was relevant to consider the harm associated with the particular drug the subject of the trafficking charge (in that case, MDMA). Two related issues were identified as follows:[17]

(A) When a person is being sentenced for the offence of trafficking in a drug of dependence, is it relevant for the court to consider:

(i) the nature and extent of the harm which the particular drug causes, both directly to users of the drug and indirectly to the community as a whole; and

(ii) whether the particular drug of dependence is, by those measures, more or less harmful than another drug of dependence?

(B) If so, on what information is the court entitled to act in assessing the harmfulness of the particular drug?

52 The Court summarised its conclusions as follows:[18]

In our view, the first question should be answered in the negative. As a matter of statutory construction, the harmfulness of the drug is irrelevant to the exercise of the sentencing discretion. The second question accordingly does not arise. (When we refer to 'the harmfulness of the drug', we mean the general characteristics of the drug in question, not the harm which may be proved to have been caused by the particular offender's trafficking in that drug.)

It is clear, we think, that Parliament did not intend the sentencing court to make any judgment about the (relative) harmfulness of the drug in question. This conclusion is based both on what the DPCS Act says, and on what it does not say.

Under the DPCS Act, trafficking offences are classified by quantity. The maximum penalties are set accordingly. Had Parliament intended to adopt a harm-based classification of trafficking offences, a very different legislative scheme would have been required, along the lines of the scheme then (and now) in force in the United Kingdom and New Zealand.

Without a comprehensive harm-based classification of drugs, of the kind established in those other jurisdictions_, no individual judge or magistrate can evaluate the relative harmfulness of any particular drug, however common its use. Such assessments require specialist expertise, involve detailed investigation and must be based on extensive information on a range of issues. Parliament cannot have intended that courts should even attempt the task_.

53 Later, in the course of a detailed analysis of the considerations underpinning the Court's conclusions, it was observed:[19]

As suggested earlier, we think it wholly impracticable - and undesirable - for any sentencing judge to attempt to form views about the (relative) harmfulness of the particular drug of dependence the subject of the trafficking charge. This is so whether or not expert evidence is led. The practical impossibility of the task reinforces our conclusion that Parliament did not intend that it be undertaken.

The difficulties involved in a judge assessing the seriousness of trafficking in a particular drug of addiction, based upon the characteristics of the substance involved, are numerous. It is necessary to draw attention to only a few.

However experienced they may be, few judges can claim any degree of expertise concerning the social or other costs to the community, or the psychological or physical consequences, of the ingestion of even the most commonly encountered drugs. New substances and combinations of substances - concerning which little, if any, experience exists - appear with regularity.

As we suggested earlier, questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community. Little assistance can be derived, in our view, from a consideration of classifications of seriousness employed by courts in the past which were, necessarily, based on limited experience and anecdotal evidence and appear not to have been informed by empirical studies or by the specialist knowledge now available.[21]

With regrettable frequency, judges and magistrates are called on to deal with cases involving drug-affected or addicted persons, and with cases which relate to trafficking in a wide range of substances. Being exposed to evidence of the damage associated with the trafficking and use of various drugs, judges and magistrates may well come to view one drug as more pernicious than another. Their collective experience is clearly capable of providing an important insight into the kinds of problems associated with drug use, and the frequency with which those problems are encountered. Indeed, it is experience which could make a valuable contribution to the development of some form of harm-based classification were that legislative path to be chosen.

If some classification of seriousness is to be made on the basis of the perceived characteristics of particular drugs, this task should only be undertaken after clear identification of the criteria upon which the assessments are to be made. We do not regard the experience - individual and collective - of judges and magistrates as affording any basis whatever for a court to form, let alone act on, a view about the relative harmfulness of a particular drug. This is simply not a subject to which the doctrine of judicial notice has any application, less still the doctrine of precedent. After all, a conclusion about the harmfulness of a particular drug is a conclusion of fact.[22]

Ultimately, the question to be considered is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed for dealing in the material involved. Of course, not all examples of trafficking are equally serious and it is obvious that discrimination between offences and offenders is required, based upon a wide range of considerations, in order to ensure that the sentences handed down in individual cases are appropriate in the particular circumstances relating to the offences and offenders concerned.

55 Pidoto is expressed in uncompromising terms. Thus, no matter the collective experience and knowledge of the judges of the criminal courts with respect to the harmful effects of ice, gathered over a number of years, neither the individual nor collective experience of judges affords any basis whatever for a court to form - let alone act on - a view about the relative harmfulness of ice. As a result of Pidoto, we are bound to say that this 'is simply not a subject to which the doctrine of judicial notice has any application'.

56 In Adams[23] - a case dealing with the importation of MDMA, contrary to s 233B of the Customs Act 1901 (Cth) - the High Court, so it seems to us, endorsed the kind of approach adopted in Pidoto. The sentencing judge had said that, in general terms, for the purposes of sentencing the courts equated MDMA with heroin. On appeal, it was contended that the appellant should have been sentenced upon the basis that MDMA was less harmful to users and to society than heroin. Dismissing the appeal,[24] the majority - Gleeson CJ, Hayne, Crennan and Keifel JJ - said:[25]

The Customs Act adopted (and the Criminal Code (Cth) as amended since the relevant time adopts) a quantity-based penalty regime, fixing 'trafficable' and 'commercial' quantities of certain drugs, distinguishing between those drugs in setting such trafficable and commercial quantities, but otherwise making no distinction between them in terms of maximum penalties. Under s 235 of the Customs Act, offences involving a trafficable quantity of narcotic goods carry a maximum penalty of imprisonment for twenty-five years and/or a fine not exceeding $500,000, and offences involving a commercial quantity of such goods carry a maximum penalty of imprisonment for life and/or a fine not exceeding $750,000.[26] For example, the trafficable quantity of cocaine was 2 g; that of heroin was 2 g; that of MDMA was 0.5 g. The commercial quantity of cocaine was 2 kg; that of heroin was 1.5 kg; that of MDMA was 0.5 kg.

This legislative approach, which recognises the financial rewards available from dealing in illicit drugs, thus differentiates between various narcotic substances in designating the trafficable and commercial quantities, but applies the same penalty regime to the quantities so designated.[27] It may be contrasted with legislation in New Zealand[28] and Canada,[29] which grades drugs according to a legislative perception of their harmfulness, and prescribes penalties based on harmfulness rather than quantities. (The Court was informed that in each of those jurisdictions MDMA falls within the most serious class of drugs.)

The appellant's entire argument is based on the factual assertion that 'MDMA ... is less harmful to users and to society than heroin'. The quantities in contemplation for the purposes of that comparison are unspecified. How much MDMA is being compared with how much heroin? Other aspects of the meaning of the proposition are equally unclear. Harm to users and society is a protean concept. Counsel had understandable difficulty explaining exactly what the proposition means, let alone demonstrating, by evidence available to the sentencing judge or matters of which a court could take judicial notice, that it was true. What kinds of user, and what kinds of harm to society, are under consideration? The social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers. As the Victorian Court of Appeal pointed out in R v Pidoto and O'Dea,[31] 'questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community'. Furthermore, in relation to some of these matters, scientific knowledge changes, and opinions differ, over time_. Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken_.

An equally serious difficulty for the appellant's argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties. In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme. This problem was recognised by the Court of Criminal Appeal of New South Wales in R v Poon.[32] A similar problem in relation to Victorian legislation underlay the decision in Pidoto and O'Dea noted above.

Of course, the fixing of a maximum penalty is not the end of the matter, as was emphasised in Ibbs v The Queen.[33] But there is nothing in the Customs Act, or the evidence, or the demonstrated state of available knowledge or opinion, which requires or permits a court to sentence on the basis that possessing a commercial quantity of MDMA is in some way less anti-social than possessing a commercial quantity of heroin. ...

58 More recently, in Pham,[34] French CJ, Keane and Nettle JJ observed that in Adams the court 'rejected any idea of a judicially constructed assessment of the relative harmfulness of the different kinds of narcotic substances', and that, 'among other difficulties, such an approach would cut across the legislative scheme for a quantity-based system' (although it was also observed that nothing said in Adams displaced the holding in Wong,[35] 'that to treat the weight of the narcotic as the chief factor in fixing sentence, without taking into account the many conflicting and contradictory elements which bear upon sentencing an offender, represents a departure from fundamental sentencing principle').[36]

59 As we have said, one cannot sit daily in criminal courts without observing the harm that ice use causes to both individual offenders and the community. Principle requires, however, that judges ignore the wealth of knowledge and experience gleaned about ice, and ignore its particular harmful qualities for the purposes of sentencing. In the present case, the judge took into account for the purposes of sentence that ice in particular 'has addictive qualities and is often productive of extreme violence and dangerous behaviour', and that the 'impact of the availability and use of ice on the community cannot be underestimated (scil overestimated)'. The applicant's submission that the judge was not entitled to take those characteristics into account must be accepted. Error in the exercise of the sentencing discretion has thus been established.

60 Although in Pidoto the Court observed that 'the whole structure of the trafficking provisions, and the very precise content of the relevant columns in Schedule 11 [of the Drugs Act], leads inevitably to the conclusion that, other things being equal, trafficking in a commercial quantity of drug of dependence A is no more nor less serious than trafficking in a commercial quantity of drug of dependence B',[37] the Director - at the Court's invitation, by way of supplementary argument - submitted that in the case of ice trafficking 'other things' are not 'equal', since trafficking in methylamphetamine 'is exceptionally prevalent'.

61 Despite the fact that the harmfulness of methylamphetamine could not be taken into account, ground 3 brought into focus the question whether the sentencing standards that applied to trafficking in other drugs of dependence required adjustment in the case of methylamphetamine because of the increased prevalence of trafficking in that drug. The Director submitted that increased prevalence provides an acceptable basis for a greater emphasis on deterrence when sentencing for this particular offence.[38]

62 Callaway JA, with whom Phillips CJ and Batt JA agreed, observed that 'cases are legion of its being taken for granted that various offences ... are prevalent'.[39] The relevance of prevalence to sentencing was canvassed in Downie. The prevalence of a particular offence is a factor relevant to the weight to be given to general deterrence and as serving to inform the objective gravity of the offence.[40] And indeed, prevalence was one of the circumstances recognised in Ashdown[41] which may justify a revision of current sentencing practice. Thus, if increased prevalence in trafficking in ice can be demonstrated, it is a factor which may bear upon general deterrence, and, concomitantly, the severity of sentencing for that offence.[42] Recognition of its prevalence might also - over time - be reflected in an adjustment of current sentencing practice for that particular offence.[43]

63 The Director drew attention to a report published by the Sentencing Advisory Council, Major Drug Offences - Current Sentencing Practices ('SAC Report'). Apart from one matter not presently relevant,[44] the SAC Report, published in March 2015, concerned itself with sentences for trafficking drugs of dependence in commercial, and large commercial, quantities in a five year period between 2008 to 2009, and 2012 to 2013. Of the cases of trafficking in a commercial quantity of a drug of dependence over that period, an 'astonishing' 42 per cent of cases related to methylamphetamine (the next highest percentage being MDMA, a mere 20 per cent). The SAC Report observed:[45]

Methylamphetamine/ice was the most common type of drug trafficked in a commercial quantity during the reference period (42% of charges), followed by MDMA/ecstasy (20% of charges) and cannabis (17% of charges). The trafficking of heroin and cocaine in commercial quantities was rarely sentenced (5% and 4% of charges respectively), as was the trafficking of precursor substances (5% of charges) and amphetamine (4% of charges).

64 So far as a large commercial quantity was concerned, the SAC Report recorded that 29 percent of cases over the relevant period related to ice. It was said:[46]

During the reference period, MDMA/ecstasy was the most common type of drug trafficked in a large commercial quantity (42% of charges), followed by methylamphetamine/ice (29% of charges) and heroin (10% of charges). The trafficking of cocaine in a large commercial quantity was rare (3% of charges), and there was only one charge of trafficking in a large commercial quantity of cannabis. In 9% of charges, an aggregated quantity of various drug types was trafficked.

65 The Director also referred to the Final Report of the Law Reform, Drugs and Crime Prevention Committee of the Victorian Parliament - Inquiry into the Supply and Use of Methamphetamines, Particularly Ice, in Victoria ('Law Reform Report') - published in September 2014, which, among other things, described a steady increase in the number of clandestine laboratory detections over the last few years.[47] The report also detailed a steady increase in the detection of ice importations into Victoria in the previous five years.[48]

66 The prevalence of trafficking in ice is so great, the Director submitted, that general deterrence must be given even more focus in the case of that drug than in others. To afford general deterrence greater prominence in cases of trafficking in ice than in cases involving the trafficking of other drugs, the Director submitted, does not offend the principles in Pidoto. It was submitted that Pidoto rests on the foundation that by determining a 'quantity-based' relativity between different drugs, the legislature excluded the possibility of a 'harm-based gradation'. Nothing in that reasoning, however, requires a sentencing judge to exclude from consideration other relevant aspects of an offence unrelated to the harmful characteristics of the drug. For that reason, so the Director submitted, given that the available evidence demonstrates that trafficking in ice is prevalent, it is permissible for a sentencing judge to apply the 'ordinary approach' to prevalence, and give additional weight to general deterrence and denunciation.

67 In our view, the Director's submissions as to how trafficking in ice ought now be approached should be accepted. As we previously observed,[49] in Pham, French CJ, Keane and Nettle JJ recognised that although the court in Adams rejected any idea of a judicially constructed assessment of the relative harmfulness of the different kinds of narcotic substances, nothing said in Adams displaced the holding in Wong that to treat the weight of the narcotic as the chief factor in fixing sentence, without taking into account the many conflicting and contradictory elements which bear upon sentencing an offender, represented a departure from fundamental sentencing principle.[50]

68 A more difficult question is how prevalence is to be established. In Downie, it was recognised that although 'prevalence would have to be established from the materials to which resort may properly be had on a plea to establish sentencing facts', such materials 'are not restricted to admissible evidence and matters of which judicial notice may be taken';[51] 'all that is required is that a court should be sure that an offence is prevalent before weighting the instinctive synthesis in favour of general deterrence and giving less weight to mitigatory factors'.[52] Maxwell P observed in Nguyen:[53]

Axiomatically, before prevalence can be taken into account for the purposes of sentencing, a judge must have 'some reliable foundation' for the conclusion that the offence is in fact (more) prevalent. And if the judge is minded to impose a more severe sentence on account of (increased) prevalence, then on ordinary natural justice principles the matter must be raised with counsel and an opportunity afforded for submissions to be made. In the present case, it would clearly have been preferable for the judge to have informed counsel that he perceived there to have been an increase in the prevalence of drug importation, and then to have invited submissions both on that question of fact and on its significance for sentencing in the case at hand.

69 It seems to us that it has become a matter of common knowledge that trafficking in ice is not only prevalent but that its prevalence has increased.[54] Prevalence of the offence of trafficking in methylamphetamine is thus a matter proper for a sentencing court to take into account when assessing the weight to be given to general deterrence. That said, in the instant case it would not be appropriate to take such prevalence into account as a relevant factor in imposing sentence on the applicant, since it was not a matter raised before the sentencing judge.

70 As we have said, the judge erred in having regard to the harmful quantities of methylamphetamine for the purposes of sentencing the applicant. We would thus grant leave to appeal on ground 3. Notwithstanding the error, however, we would dismiss the appeal. When all relevant factors are taken into account, the sentence imposed is, in our view, lenient. We are not persuaded that a different sentence should be imposed. Thus, we would dismiss the appeal on this ground.

71 We should make some further observations concerning the matters raised by this application. As we have mentioned, sentencing courts may, to a relatively modest extent, adjust the sentencing standards for trafficking in ice to deal with its increased prevalence. That said, its particularly harmful consequences for the community, and for the individual user, though also well-known, must be disregarded for the purpose of sentencing. That is an unsatisfactory state of affairs which only the legislature has the power to correct. Part 3 of Schedule 11 of the Drugs Act sets out commercial and other quantities of drugs of dependence. For methylamphetamine, a large commercial quantity is 750 grams (or one kilogram of mixed substance), and a commercial quantity is 100 grams (or 500 grams of mixed substance). Given that the regime of the Drugs Act is quantity based, and given further that trafficking in ice is the source of such great harm to the community, the legislature might consider revisiting the quantities set out in the Act, and legislate for lesser quantities to constitute both a commercial quantity, and large commercial quantity, of this very dangerous drug.

Ground 2 - Did the applicant's psychological condition reduce his moral blameworthiness?

72 At the time of sentence, the applicant was aged 41 years. He had come to Australia 14 years ago from Lebanon, where, at age 16, he had joined the Lebanese army. It seems that he had been a sniper in the Lebanese army, involved in the killing of a number of Syrian soldiers. His childhood and upbringing were traumatic. He has a number of siblings, some of whom are in Australia. He has no children, a matter that has put stress on his relationship with his wife. The applicant's work history in Australia included employment as a taxi driver, a slaughterman, a general handyman and restaurant work. As we have mentioned, material before the sentencing judge indicated that the applicant commenced using both methylamphetamine and cannabis around the time of the his offending in 2013. He not only acquired ice for himself, but trafficked 'in order to generate some finance'. It was put that he no longer used illicit drugs.

73 In a report dated 7 July 2014, Mr Tim Watson-Munro, a Consultant Forensic Psychologist, found that the applicant suffered from 'Post Traumatic Stress Disorder' and 'Major Depression'.

74 Further, Dr Lester Walton, Consultant Psychiatrist, had provided a report dated 11 June 2015. He concluded that the applicant 'is suffering from a chronic post-traumatic stress disorder' ('PTSD'), related to the violent death of his mother, and aggravated by his military experience. Dr Walton also thought the applicant to be suffering from 'a chronic mood disorder with prominent anxiety and depression'. He concluded that the applicant's drug taking at the time of his offending had relevance to the offending in the sense that it was 'probable that the drug abuse would have aggravated depression, in particular, which may well have compromised his decision-making and careful consideration of the consequences of his actions'. Turning his mind specifically to the issue of whether the applicant's moral culpability was lessened by virtue of his mental state at the time of the offending, Dr Walton expressed the view:[55]

... This man has a significant psychiatric history which raises the question surrounding Verdins considerations. On what might be described as a spectrum of relative weighting of those principles between near-miss psychiatric impairment and a situation where psychiatric factors have no relevance to the offending, I would see [the applicant] as occupying the middle ground. His combination of mood disorder and post-traumatic stress disorder certainly amounts to a major psychiatric condition and it is well recognised that such psychopathology can adversely affect a person's capacity to exercise proper social judgment. I do see that as having relevance in this case, that is, there is at least some connection between the mental disorder and the offending, albeit psychiatric factors not amounting to a total explanation. ...

75 Counsel for the applicant relied on the applicant's psychiatric condition in mitigation of sentence.[56] The prosecutor took issue, relying on the apparently calculated nature of the applicant's activities.

76 Although the judge accepted that at the time of sentence the applicant was suffering from depression and PTSD that would make imprisonment more onerous, she did not accept that the applicant's psychiatric condition had an impact upon his ability to exercise judgment at the time of the offending such that his actions were less morally blameworthy. In her reasons for sentence, the judge said:

The prosecution did not accept that your level of functioning at the time of the commission of the offence was such as to reduce your moral culpability. The opinion of Dr Walton was challenged on the basis that he had not assessed you at the time of the offending, but more significantly it was submitted that his opinion was contrary to the evidence regarding the efficiency within which you were able to conduct all aspects of the trafficking business. Nor was the opinion consistent with the content and your demeanour in the material obtained in the telephone intercepts. Rather, the material illustrated that you were able to make calm and rational choices and you were able to exercise appropriate judgment. ...

I accept the submission of the prosecution regarding your level of functioning at the time of the offence. Your actions were focused and calculated on the successful running of your trafficking business over a period of months. The conditions that you were suffering at the time of the commission of the offence were not such as to significantly impact on your judgment to the extent that you should be treated as less blameworthy for your actions. I do however accept that you are currently suffering from depression and PTSD and that as a consequence gaol will be more onerous for you.

77 Counsel for the applicant submitted that it was not open to the judge not to be satisfied of the connection that Dr Walton had made between the applicant's mental state and his offending on the basis that the applicant's actions were 'focused' and 'calculated'. It was submitted that the applicant should therefore be resentenced 'in accordance with the substance of the Walton opinion', and, as such, the applicant ought be given the 'full benefit' of such satisfaction consistently with the first three limbs of Verdins.

78 In our view, the applicant's submissions should be rejected. The applicant bore the onus of persuading the judge that Verdins considerations were engaged. Dr Walton spoke of a spectrum where, at one end, a person's condition fell just short of mental impairment, and, at the other, had no relevance at all to the offending. He saw the applicant's case as occupying the 'middle ground' between those two extremes. In Dr Walton's opinion, there was 'at least some connection' between the mental disorder and the offending, although psychiatric factors did not amount to 'a total explanation'. It was for the applicant to demonstrate, however, that there was a real connection between the mental disorder and the offending before it could be suggested that any reduction in moral culpability, and consequent mitigation in sentence, ought to flow from that disorder.[57]

79 The judge did not altogether reject the notion that the applicant's condition did not afflict him at the time of the offending. Rather, she found that the 'conditions' that he was suffering at the time of the offending were not such as to 'significantly impact' on his judgment to the extent that he should be treated as less morally blameworthy for his actions. As the judge remarked, the material illustrated that the applicant was able to make 'calm and rational choices' and 'exercise appropriate judgment', and that his 'actions were focused and calculated on the successful running of [his] trafficking business over a period of months'.

80 The findings that the judge made were open. Ground 2 is bereft of merit.

Ground 3 - Is the sentence manifestly excessive?

82 Having been born on 12 June 1974, the applicant has just turned 42 years of age. As we have mentioned, some 14 years ago he migrated to this country from Lebanon, having there served in the army.

83 The applicant has a number of prior convictions, including making threats to kill, unlawful assault and possessing methylamphetamine. Significantly, on 26 February 2013 he was placed on a community correction order ('CCO') for 12 months for offences including possessing methylamphetamine. He was thus subject to that CCO for most of the period embraced by the present offending (18 September 2013 to 15 March 2014). A core condition of every CCO is that the person subject to the order 'must not commit ... during the period of the order, an offence punishable by imprisonment'.[58] In the same way that an offence committed on bail[59] is an aggravating feature, an offence committed in breach of a CCO should be similarly treated. Indeed, every time the applicant trafficked methylamphetamine between 18 September 2013 and 26 February 2014, he did so in breach of a court order requiring him not to commit an offence punishable by imprisonment. Not only was his continued breaches of the CCO an aggravating feature of the offending, however, but it also bore on his prospects of rehabilitation (although, it must be acknowledged, the judge assessed those prospects as good).

84 The judge regarded the plea of guilty as having been entered 'at the first opportunity' and thought it to be 'indicative of remorse'. Her Honour considered that the applicant's 'rehabilitation prospects are good and a shorter than usual non-parole period is warranted'.

85 In light of the plea of guilty and remorse, the evidence of the applicant's mental condition, prospects of rehabilitation and other mitigating factors, the applicant submitted that the sentence imposed is manifestly excessive. We do not agree. As we have said, we regard the sentence as lenient.

86 When it is asserted that a sentence is manifestly excessive, the applicant must show that it was not reasonably open to the sentencing judge to impose the sentence which he or she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[60] A sentence may only be regarded as manifestly excessive if it is so far outside the range of those sentences properly open as to demonstrate error.[61] Guidance may be derived from what Young CJ said in Kenny:[62]

In order to make good a submission that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration. As the majority of the court said in Williscroft's Case,[63] to which reference has been made during the course of argument, the imposition of a sentence is in the last resort an individual sentencing judge's instinctive synthesis of the various factors involved, and when application is made to this court for leave to appeal on the ground that a sentence imposed in the court below is excessive, the approach of the members of this court must, I think, necessarily be the same. Each member of the court instinctively synthesises the relevant considerations and, having done so, considers whether in all the circumstances he is able to say that the sentence imposed is so obviously excessive that there must have been some miscarriage in the trial Judge's discretion.

87 As the facts surrounding the first charge on the indictment demonstrate, the applicant was an enthusiastic purveyor of a dangerous drug for profit over a protracted period. In our view, when all relevant factors are intuitively synthesised, it cannot sensibly be contended that the sentence of two years' imprisonment on charge 1 was outside the available range. Indeed, in our opinion, it is barely within the lower end of the permissible range. Moreover, the sentences on the other charges are unremarkable, as is the non-parole period.

89 The application for leave to appeal should be granted on ground 3, but the appeal dismissed. Leave to appeal must otherwise be refused.

[1] Drugs, Poisons and Controlled Substances Act 1981 s 71AC. The maximum penalty is 15 years' imprisonment.

[2] Crimes Act 1958 s 81(1). The maximum penalty is 10 years' imprisonment.

[3] Crimes Act 1958 s 195. The maximum penalty is two years' imprisonment.

[4] Control of Weapons Act 1990 s 5AA. The maximum penalty is two years' imprisonment (or a fine of 240 penalty units).

[5] Charge 1 was a 'Giretti' count: R v Giretti (1986) 24 A Crim R 112.

[9] R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269 (Maxwell P, Callaway, Buchanan, Vincent and Eames JJA) ('Pidoto').

[11] For example, see Spence v The Queen [2016] VSCA 113; Hicks v The Queen [2015] VSCA 14; Vuong v The Queen [2015] VSCA 238; Hunter v The Queen (2013) 40 VR 660; Barbour v The Queen [2013] VSCA 94; Zaim v The Queen [2011] VSCA 80.

[12] For example, see DPP v Torun [2015] VSCA 15; R v Bryan [2014] VSCA 54.

[13] For example, see Evison v The Queen [2014] VSCA 132; Gosland v The Queen [2013] VSCA 269.

[14] For example, see Da Costa v The Queen (2016) 74 MVR 489; Brayshaw v The Queen [2011] VSCA 233; (2011) 59 MVR 149; Vergados v The Queen [2011] VSCA 438.

[15] For example, see Rout v The Queen [2016] VSCA 126; DPP v Salih [2016] VSCA 107; Sanderson v The Queen [2015] VSCA 315; DPP v Barnes [2015] VSCA 293; O'Connor v The Queen [2014] VSCA 108; Khayre v The Queen [2013] VSCA 286; Bonacci v The Queen; Vasile v The Queen (2012) 224 A Crim R 194.

[16] For example, see DPP v Natoli [2016] VSCA 35; Abdou v The Queen [2015] VSCA 359; Zogheib v The Queen [2015] VSCA 334; Wright v The Queen [2015] VSCA 333; Kilic v The Queen [2015] VSCA 331; Ellis v The Queen [2015] VSCA 320; Darmos v The Queen [2015] VSCA 312; Mercer (a pseudonym) v The Queen [2015] VSCA 257; Portelli v The Queen [2015] VSCA 159; Mackay v The Queen [2015] VSCA 125; Hanna v The Queen [2014] VSCA 187; Osmond v The Queen [2013] VSCA 285; Hancock v The Queen [2013] VSCA 199; McGuigan v The Queen [2012] VSCA 121; Zammit v The Queen [2012] VSCA 216; DPP v Lebehen [2011] VSCA 75.

[19] Ibid 279-80 [49]-[51] (emphasis added).

[20] Ibid 282 [59]-[62] (citations in original).

[21] As to the need for 'appropriate studies' to be undertaken, see R v Bowers (1997) 97 A Crim R 461 at 464 per Ireland J.

[22] Compare Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 425-6, [2]-[4] per Gleeson CJ and Kirby J.

[23] Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143 ('Adams').

[24] Heydon J would have revoked the grant of special leave.

[25] Ibid 146 [2]-[3] (citations in original).

[26] The amounts are as set out in the respondent's written submissions. The legislation is expressed in terms of penalty units, the value of which changes from time to time.

[27] See R v Zeccola (1983) 11 A Crim R 192. An example of a similar State-based penalty regime is the Victorian legislation considered in R v Pidoto [2006] VSCA 185; (2006) 14 VR 269.

[29] Controlled Drugs and Substances Act 1996 (Can).

[30] Adams, 147-8 [9]-[11] (emphasis added).

[32] [2003] NSWCCA 42; (2003) 56 NSWLR 284 at 286 [3]- [5], 293-295 [34]-[43].

[34] R v Pham [2015] HCA 39; (2015) 325 ALR 400 ('Pham').

[38] R v Downie and Dandy [1998] 2 VR 517, 521-2 (Callaway JA) ('Downie').

[40] WCB v The Queen (2010) 29 VR 483 ('WCB'); DPP v Avci [2008] VSCA 256; (2008) 21 VR 310; Braslin and Cowen v Tasmania [2010] TASCCA 1, [23]; Conley v WA [2013] WASCA 95, [27]; Giles v Barnes [1967] SASR 174, 181; R v Downie and Dandy [1998] 2 VR 517; R v Brewster [1998] 1 Cr App R 220, 224; R v GMT [2006] VSCA 13; R v Dowie [1989] Tas R 167; Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421, 439; R v Henry (1999) 46 NSWLR 346, 366-7, [86]-[88].

[41] Ashdown v The Queen [2011] VSCA 408; (2011) 37 VR 341, 403 [180](2) (Redlich JA).

[42] See A Freiberg, Sentencing: State and Federal Law in Victoria (3rd ed.), 164-6 [2.165], 337-8 [4.205].

[43] Cf WCB, 493 [31]; DPP v Duong [2006] VSCA 78, [19].

[44] Cultivating a commercial quantity of narcotic plants.

[50] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 609 [69]-[70] (Gaudron, Gummow and Hayne JJ).

[53] Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673, 694 [82] (footnotes omitted).

[54] Evidence Act 2008, s 144. Cf Farkas v The Queen [2014] NSWCCA 141, with respect to the 'normal street purity' of methylamphetamine.

[56] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (limbs 1, 2 and 3) ('Verdins').

[57] Arthars v The Queen (2013) 39 VR 613, 618 [13].

[59] R v Gray [1977] VicRp 27; [1977] VR 225, 229-230; R v Treloar and Butler (1989) 43 A Crim R 75, 80; R v Basso & Frazetto [1999] VSCA 201; (1999) 108 A Crim R 392, 397-8 [21]-[26], 404-5 [57]-[63]; DPP v Galea and Mosut [2000] VSCA 87; (2000) 112 A Crim R 507; R v Pop [2000] WASCA 283; (2000) 116 A Crim R 398.

[60] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA).

[61] Hanks v R [2011] VSCA 7, [22]; Neubecker v R [2012] VSCA 58; (2012) 34 VR 369, 385 [74].

[62] R v Kenny (Unreported, 2 October 1978, Vic, CCA).

[63] R v Williscroft [1975] VicRp 27; [1975] VR 292, 300.

(Interception and Access) Act 1979

Poisons and Controlled Substances Act 1981

(Controlled Operations) Act 2004

Drugs and Substances Act 1996

At a glance

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Cases Cited (19)