1. Rodney Hawker, the appellant, was found in possession of 5.7 kg of heroin (in powder and tablet form), 15.8 grams of methylamphetamine ('ice') and 26.2 grams of 'GHB'. He contends that the sentences of 3 years on a charge of trafficking heroin and

12 months on a charge of trafficking ice, and an order to serve 3 months of the latter cumulatively upon the former, are each individually manifestly excessive. Bearing in mind the quantity of heroin and that the trafficking charges each carry a maximum term of imprisonment of 15 years, on those bare facts his contention appears to take on a substantial challenge. In our view, for the reasons we give, his contention fails to overcome that challenge and it ought not be upheld. 2. In further detail, the appellant pleaded guilty in the County Court to two charges of trafficking in a drug of dependence (heroin and methylamphetamine respectively) and one charge of possessing a drug of dependence (1,4-butanediol). Summary charges were uplifted to the Court and the appellant pleaded guilty to those charges also. They were for dealing with the suspected proceeds of crime ($3,870), unlicensed driving and possessing a controlled weapon (a baseball bat). The appellant was sentenced as follows:

Trafficking in a drug of dependence (heroin)[1]

Trafficking in a drug of dependence (methylamphetamine)[2]

Possession of a drug of dependence (1,4-butanediol)[3]

1 year's imprisonment or 30 penalty units or both[4]

Deal with property suspected of being proceeds of crime[5]

Forfeiture and destruction of property seized by police

1. The appellant was granted leave to appeal against his sentence on a single ground:[8]

The individual sentence imposed on charge 1 (3 years), the individual sentence imposed on charge 2 (1 year), and the order for [cumulation] made on charge 2 (3 months) are each manifestly excessive.

1. The circumstances of offending are conveniently set out in the reasons for sentence.[9] We shall reproduce the relevant paragraphs:

I was told that at about 1:27 am on 23 May 2017 police intercepted a BMW coupe which you were driving near the intersection of the Melba Highway and Yarra Glen Bypass. When police conducted a vehicle check the mobile data terminal indicated that the car was registered to a Hamid Sadri, who was the holder of a surrendered learner's permit and had moved interstate.

The front-seat passenger was a Brianna Kate Rosse. When police asked to see your licence and conduct a breath test you appeared to be very nervous. You were sweating and shaking. You then gave your details to police.

When police asked you where you had been that night, you said that you had been '[s]taying in Kinglake for a few days and were on [your] way home'. Police then conducted checks confirming that you had a cancelled licence.

Police returned to the BMW and had a further conversation with you and observed that you were sweating even more and had started to shake uncontrollably.

Police established that Ms Rosse had used syringes in her bag. Both officers could see empty syringe wrappers in the vehicle and formed the view that there may be drugs in the vehicle.

Police then asked you to get out of the car. As you got out of the car, one of the police officers observed a bulge in your right pocket and asked you to empty your pocket. When you did this, a small container with clear liquid in it was produced. Police formed the view that this was GHB. You said it was 'shampoo from [your] trip away'.

You were then placed under arrest and police searched the car.

In the front driver's side door holder of the car, $3,870 cash and a large snap- lock bag with a white crystal substance inside were found. When asked whether the money was yours, you confirmed that it was and claimed that you had 'earnt it working as a tiler'. When asked what you could tell police about the white crystal substance you replied, 'No comment.'

In the boot of the car police found a blue-and-white freezer shopping bag labelled 'Micro chemist'. Inside that bag were:

a sealed bag containing a brown powder substance;

one Zip lock bag with 52 mottled pink pills labelled 'My mix';

one Zip lock bag containing 827 mottled pink tablets labelled 'End ones mix threw'; and

a clear plastic container sealed with a white lid and grey duct tape containing 16,466 mottled pink tablets labelled '16,500'.

When asked about each of these items you replied, 'No comment.'

In the boot, the police also found a Regent baseball bat beside the blue-and white bag. This gives rise to the summary charge of possess a controlled weapon.

A small green container containing liquid was found in the glove compartment of the car and a small container of white powder was found in a black bag on the back seat.

You and Ms Rosse were taken to the police station. You were interviewed and charged. You made no comment answers in your interview.

Once the interview was completed you were processed before being placed in a holding cell. During that processing a small Zip lock bag containing white crystal substance was located in your underwear.

The basis for each of the charges on the indictment is as follows.

Charge 1, trafficking in a drug of dependence namely diacetylmorphine (heroin)

This relates to the substances located in the boot of the vehicle. Specifically:

• a sealed bag containing a brown powder substance. This weighed

292.8 grams and contained 23 per cent pure diacetylmorphine, or heroin, which converts to 67.3 grams pure;

• one Zip lock bag containing 827 mottled pink tablets. These weighed 278.5 grams and contained 1.8 per cent pure heroin, which amounts to 5 grams pure; and

• a clear plastic container sealed with a white lid and grey duct tape containing 16,466 mottled pink tablets. These weighed 5,406.2 grams [and] contained 2.5 per cent pure heroin, which converts [to]

135.1 grams pure.

The total weight of pure heroin found was 207.4 grams.

...

Charge 2, trafficking in a drug of dependence namely methyl amphetamine

The basis for Charge 2 relates to methylamphetamine found in the front driver's side door of the car:

That is the large snap-lock bag which contained a white crystal substance. This weighed 17.8 grams and contained 89 per cent pure methylamphetamine. That is 15.8 grams pure.

The total weight of pure methylamphetamine found was 15.8 grams and this was in your possession for sale.

Charge 3, possession of a drug of dependence namely 1,4-Butanediol

The basis for Charge 3 relates to drugs found on you and in the vehicle. Specifically:

in your right pocket was a small container with clear liquid. The liquid weighed 11.4 grams and was identified as 1,4-Butanediol; and

in the glove compartment of the vehicle a small green container containing liquid. The liquid weighed 14.8 grams and was identified as 1,4-Butanediol[.]

The total weight of the substance found was 26.2 grams.[10]

1. The appellant was charged and remanded in custody on the date of his offending. He was granted bail on 7 August 2017. A contested committal hearing proceeded on

27 April 2018, and the appellant was committed for trial. The appellant's matter was listed for trial in the County Court to commence on 1 April 2019. On that date the appellant offered to plead guilty to charges 2 and 3. But he maintained that he had no involvement in relation to the heroin which, at that stage, was the subject of a charge of trafficking a commercial quantity of a drug of dependence. His offer was rejected by the prosecution. The following day the appellant successfully applied to adjourn the trial for 'personal reasons'. The trial was re-listed for 16 March 2020. 2. The appellant's trial date in March 2020 was vacated due to the COVID-19 pandemic and listed for pre-trial argument on 18 January 2021, at which time the appellant offered to plead guilty to the charge of trafficking simpliciter in relation to the heroin. The matter then resolved. 3. The plea hearing was listed in the County Court for 26 May 2021, adjourned at the request of the appellant in order to obtain the report of a psychologist, and re-listed and heard on 19 August 2021 (the psychologist's report being prepared on 4 August 2021). Sentence was handed down on 6 October 2021.

1. The judge made it clear that despite the quantity of heroin being substantial, she sentenced the appellant on charge 1 on the limited basis alleged by the prosecution:

The agreed factual basis for the plea to this charge is as follows:

• you were aware that there was a shopping bag in the boot of the vehicle;

• you were aware that the bag contained drugs;

• you did not know about the quantity or nature of the drugs, in fact you suspected that they were MDMA;

• you were transporting these drugs to a third party who you believed was going to sell them; and

• you were not going to sell the drugs yourself.[11]

1. Her Honour considered the offending to be serious and that the appellant's conduct called for denunciation.[12]
2. Insofar as charge 1 (trafficking heroin) was concerned, the judge, whilst acknowledging the limited basis alleged by the prosecution, went on to say,

Nonetheless, your role was an important one in helping with the distribution of the drug, the nature and quantity of which was apparently of no concern to you. Although you were not aware as to the nature of the drugs you were transporting, nor their quantity, you were prepared to transport them just the same, knowing that they were to be on-sold by another. I was told that you were prepared to do so in order to curry favour with your methamphetamine supplier in circumstances where you sold and used that drug yourself. Therefore, your motivation was for personal gain, financially and to help support your own drug habit. I also note that you were apparently trusted by your supplier to deliver the drugs. Whilst it is true that you were not leading a lavish lifestyle, nor were you living from hand to mouth in order to feed your own habit, you had a significant sum of money in the car which was at your disposal. In all of the relevant circumstances, I find that your moral culpability is high.[13]

1. On charge 2 (trafficking methylamphetamine) the judge considered the appellant's moral culpability to be high, 'but not as high as it would have been if you had not been addicted to the drug yourself and [had been] selling for pure profit'.[14] The judge correctly considered the objective seriousness of the offending to be 'not nearly as significant as that for charge 1'.[15]
2. On charge 3 (possessing GHB) the judge was satisfied, on balance, that the appellant possessed the drug for personal use.[16]
3. The judge noted that 'strong weight must attach to punishment, general deterrence and denunciation',[17] and that the appellant had a fairly limited criminal history which was 'not too relevant' to the instant offending.[18]
4. The judge allowed a 'fairly substantial discount' for the guilty pleas, enhanced by the fact that, by pleading guilty during the pandemic, the appellant helped reduce the backlog of trials besetting the courts and was prepared to face the consequences of pandemic confinement whilst in custody. Her Honour noted that the appellant was homeless at the time of offending, using methamphetamine daily, came from a difficult and violent background, and was currently in a relationship with another methamphetamine user.[19]
5. On the basis of a psychological report, the judge considered that the appellant's time in custody would be made more difficult as a result of a social anxiety disorder and longstanding major depressive disorder, noting that any gaol sentence would be the appellant's first sentence of imprisonment. Her Honour was impressed that the appellant had remained out of trouble for four years, although this achievement was undermined to some extent by the fact that for a period the appellant had relapsed into drug use. It was noted, however, that, for the year immediately preceding sentence, the appellant had remained drug-free.
6. The appellant was 39 years old at the time of offending and 43 at the time of sentence. The judge assessed his prospects for rehabilitation as fair. On the plea, counsel for the appellant submitted that a community corrections order ('CCO') in combination with a term of imprisonment of 77 days (the time served on remand) was an available sentencing option and would be an appropriate disposition.
7. Explaining the disposition ultimately imposed, her Honour said:

Having considered your matters carefully and the weight that I must attach to all relevant sentencing considerations, I am afraid that your offending is too serious to justify anything short of a period of imprisonment with a non- parole period, but I have done what I can to ensure that there is a substantial gap between the head sentence and non-parole period and that this will see you eligible for parole at an appropriate time in view of all relevant sentencing considerations in your case. Of course it is not up to me as to whether you will be released on parole at that stage, but I have imposed a minimum that I think is appropriate in all of the circumstances so that that aspect can be considered sooner rather than later.[20]

1. A ground that a sentence is manifestly excessive requires an appellant to demonstrate that the sentence imposed was wholly outside the range available to the sentencing judge in the exercise of reasonable sentencing discretion.[21]
2. In this matter, the sentencing judge determined that the offending in respect of the trafficking charges was serious - particularly in relation to charge 1 given the quantity of heroin involved. Such offending, her Honour considered, required weight to be given to the sentencing objectives of punishment, denunciation and general deterrence.[22] No real dispute was raised with that proposition although, as will be seen, the appellant made submissions regarding his moral culpability associated with the offending. We will return to these submissions shortly.
3. Overall, the appellant submitted that the sentencing purposes would have been better achieved by a combination of a short custodial sentence and a CCO. Alternatively, he submitted that the total effective sentence of 3 years and 3 months did not adequately reflect his mitigatory factors, giving rise to an inference of error in the exercise of the sentencing discretion.[23]
4. We will discuss in turn each of the mitigatory factors to which the appellant referred.

1. First, the appellant referred to the delay occurring between the commission of the offending and the imposition of the sentences - as already noted, some four years and five months. The appellant relies upon this for two reasons - first, because of the sheer length of time during which the anxiety of the matter hung over his head and, secondly, because, over that time, he demonstrated his rehabilitation and, thus, his reduced risk to the community.[24]
2. There is no doubt that a period approaching four and a half years is a very long period and that an extraordinary delay in itself is a powerful factor in mitigation regardless of the explanation for it.[25] Nevertheless explanations for delay are not irrelevant in evaluating the measure of injustice arising from any particular delay. Here, portions of the delay were attributable to the appellant's 'personal reasons' (accounting for the adjournment of trial prior to the onset of the COVID-19 pandemic); and there was some delay in obtaining a psychological report for the defence. Additionally, although the matter ultimately resolved as a plea, until January 2021 the appellant denied any criminal liability for the heroin found in the boot of the car (charge 1). Put succinctly, the avoidance of some of the delay lay within the control of the appellant.
3. As is now a notorious fact, the COVID-19 pandemic has resulted in ubiquitous delays in criminal proceedings nationwide. The extent to which the delay in the appellant's proceeding should be regarded as 'extraordinary' should be viewed with that perspective in mind.
4. In any event, the judge explicitly made allowance for the 'significant delay in [the] matter', the effort the appellant had made during the delay toward rehabilitation and the anxiety of having the matter 'hanging over [his] head for a substantial period'.[26]

1. Secondly, the appellant highlighted his guilty plea, the fact that it was made during the pandemic (and therefore worthy of greater weight than if made at other times)[27], and submitted that it was accompanied by genuine remorse. Plainly such factors, to the extent they are established, are capable of having mitigatory effect. The judge did allow 'a fairly substantial discount' for the appellant's guilty plea, making 'extra allowance' for it being made during the COVID-19 pandemic.[28] Specific attention was given to the utilitarian value of the plea.
2. Yet, not all of the factors relied upon for mitigation had unqualified merit in the appellant's case. The witnesses and the community were put to the trouble and expense of a contested committal. The appellant's guilty plea was made late in the piece, which bore upon the consideration of remorse. That plea was secured upon an agreement from the prosecution that charge 1 be reduced from trafficking a commercial quantity of heroin to the less serious offence of trafficking heroin simpliciter.

1. Thirdly, the appellant emphasised a range of factors which, in combination, were said to lower his overall culpability and degree of responsibility for the offending. In particular, he stressed:
   • that, although the quantity of heroin (in particular) was large, and that the amount of drugs may be taken into account in determining the level of an offender's culpability, here the more pertinent factor was his limited role in the trafficking enterprise;[29]
   • in this case, the agreed factual basis for his offending was that he acted as a conduit in the selling regime rather than as a seller for commercial profits;
   • his role in the trafficking enterprise was motivated to finance his personal habit rather than to make commercial profits; and
   • his difficult and abused background, relationship misfortunes, drug use and financial demise leading to homelessness at the time of his offending.[30]
2. As previously recorded, the judge noted each of the matters which the appellant emphasised before us. Nonetheless, the sentencing judge adhered to the view that the appellant's overall conduct was 'serious' and must be 'firmly denounced'.[31] Her Honour considered that the appellant's role in the distribution of the heroin (charge 1) was 'an important one' and noted that the appellant was a trusted courier for the supplier motivated for personal gain to support his drug habit. In those circumstances, the judge assessed the appellant's moral culpability as 'high'. For completeness, her Honour made particular note that the appellant's role and level of culpability on charge 2 was less significant.
3. In our view, her Honour's reasoning in this regard cannot be faulted: it was certainly a view she could reasonably take.

1. Fourthly, the appellant highlighted the hardship he would endure in gaol as a further mitigatory factor. This hardship was the product of:
   • his diagnosed major depressive disorder (MDD) and social anxiety disorder (SAD), and the fact that prison would be harder for him by reason of those mental impairments than for a prisoner without them;[32]
   • the risks associated with being in custody during the pandemic and the impact of the response to the pandemic;[33] and
   • it being his first sentence of imprisonment.[34]
2. As noted, the judge gave express recognition to each of these factors.

1. Fifthly, the appellant stressed his good prospects of rehabilitation and the recommendations made by Ms Ferrari. Those recommendations included that the appellant receive treatment for his MDD and SAD along with drug counselling and a drug treatment program. Each of these interventions, it was submitted, would be more effectively implemented in the community than in prison, supporting the proposition that a combination sentence incorporating a CCO, under the auspices of which such rehabilitation measures could be supervised, would better serve the objective of rehabilitation.
2. The appellant's prospects of rehabilitation were assessed by the sentencing judge as being only 'fair'. The factors that her Honour considered both for and against those prospects were that:
   • during the period of delay between offending and sentence the appellant 'overall ... made some efforts towards rehabilitation';
   • the appellant completed the CISP program, albeit without perfect engagement;
   • the appellant continued to struggle with addiction to methylamphetamine and more time was needed to determine whether his recent efforts to abstain would result in permanent abstention;
   • although COVID may have hampered the appellant's endeavours to obtain drug counselling, evidence of better efforts being made to obtain such counselling, other than just prior to the hearing, might have been expected;
   • the appellant's partner was also a methylamphetamine user which had not been conducive to his rehabilitation; and
   • Ms Ferrari assessed the appellant as being a moderate risk of reoffending due to his psychiatric condition, ongoing pattern of substance use to cope, association with other drug users and poor problem solving and self-regulation.
3. In all of those circumstances it is not difficult to understand why her Honour was somewhat cautious about the appellant's rehabilitation prospects.
4. When contemplating the alternative disposition of custody, rather than a CCO,

Ms Ferrari had recommended that any custodial sentence imposed upon the appellant should incorporate a period of support and supervision after his release to facilitate his transition between prison and the community. We will return to the relevance of that opinion shortly.

1. Finally, other factors and principles relied upon by the appellant were:
   • the appellant's relatively inconsequential prior criminal history;
   • the principle that a sentencing court is prohibited from imposing a sentence more severe than that necessary to achieve the purpose for which the sentence is to be imposed;[35] and
   • that even in cases of grave criminal conduct, a sentencing court may conclude that all the purposes of a sentence can be served by a short period of imprisonment coupled with a CCO of lengthy duration, with tailored conditions.[36]
2. The judge agreed that the appellant's criminal history was not 'too relevant'. Significantly, however, the judge regarded the sentencing purposes deserving most weight in the appellant's case to be general deterrence, denunciation and punishment; next, specific deterrence and the protection of the community. In light of the evidence and her Honour's findings, those conclusions were not criticised. Prominence given to those objectives sufficiently explain why the judge did not accept that a CCO was an appropriate disposition.

1. The gravamen of the appellant's arguments was that, with all of the mitigatory factors that the judge accepted and which were otherwise proper to take into account, the total effective sentence of 3 years and 3 months was inexplicably, but nevertheless manifestly, excessive. In other words, the judge must have made some error in the ultimate synthesis of considerations even though that error cannot be precisely identified.
2. We disagree. Given the serious nature of the offending, the quantity of drugs involved, the appellant's role in the offending and the reasonable caution the judge expressed about the appellant's progress towards rehabilitation, it was open to the judge to regard punishment, deterrence and denunciation as the primary sentencing objectives and to conclude, for that reason, it was inappropriate to order a CCO. As the foregoing discussion illustrates, while there were numerous mitigatory factors in play, the combined benefit to the appellant of all factors in the synthesis of considerations was somewhat attenuated by the nuances affecting each factor.
3. If (as we think it was) it was open to find that only a sentence of imprisonment was appropriate, there was nothing remarkable about a sentence of 3 years on charge 1, representing, as it does, a sentence of only 20 per cent of the maximum sentence available. That is so notwithstanding all of the mitigatory factors to which the appellant has pointed. Still less was there anything remarkable about a sentence of 1 year on charge 2 with a cumulation of 3 months on the time to be served on charge 1.
4. A question was raised on the appeal about the proportion which the non-parole period bore to the head sentence: that is 15 months to 39 months (38.5 per cent).[37] There is no doubt that the non-parole period set in this case seems unusually low as a proportion to the head sentence. It does invite some scrutiny.[38] More commonly, a complaint is made that the proportion of non-parole period to head sentence is too high. But the question posed here, perhaps, is whether the judge may have wrongly catered for the mitigatory considerations by reducing the non-parole period rather than the head sentence.
5. In our view, there is no basis for such a concern. As we have said, the individual custodial sentences and the total effective sentence are themselves unremarkable and, in our view, well within the range of sentencing options available to the judge. If anything, the non-parole period may be lenient rather than the head sentence severe.
6. Added to that, there is some explanation for there being a longer than usual non-parole period. We recall that Ms Ferrari recommended that there be assistance given to the appellant to transition back to the community given his particular combination of drug addiction, MDD and SAD. Her Honour alluded to the explanation for the 'substantial gap' between the head sentence and non-parole period, explaining that it was to see the appellant eligible for parole at an appropriate time 'in view of all relevant sentencing considerations'. Although a little elliptical, we construe that remark to refer (at least in part) to a design for strengthening the chances of the appellant's rehabilitation upon his release from custody.
7. It is perfectly proper to give effect to a rehabilitative purpose in a custodial sentence by fixing a non-parole period term lower than would otherwise be imposed.[39] If, in doing so, the judge adopted a non-parole period that was overly generous to the appellant, that is hardly a vehicle for complaint.
8. For these reasons we dismiss the appeal.

[1] Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1).

[3] Ibid s 73(1).

[4] Section 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 applied upon the finding by the sentencing judge that the possession was not for a purpose related to trafficking.

[5] Contrary to Crimes Act 1958 s 195.

[6] Contrary to Road Safety Act 1986 s 18(1).

[7] Contrary to Control of Weapons Act 1990 s 6(1).

[8] Hawker v The Queen (Unreported, Court of Appeal, T Forrest JA, 1 April 2022).

[9] DPP v Hawker [2021] VCC 1493 (Judge Cannon) ('Reasons').

[21] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.

[23] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, 75 [43].

[24] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400-401.

[27] Worboyes v The Queen [2021] VSCA 169, [39] ('Worboyes').

[29] See, for example, Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, [67]-[69].

[30] It is to be noted that no reliance was placed by the appellant (before the sentencing judge or on appeal) on the principles in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[32] R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[34] The appellant qualified this submission by acknowledging that he had received a seven day period of custody in June 2018 for a bail contravention.

[35] Sentencing Act, s 5(3), (4) and (4C).

[36] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 328-9.

[37] No specific ground of error was advanced on this point.

[38] R v VZ [1998] VSCA 32; (1998) 7 VR 693, 697-8; DP v The Queen [2011] VSCA 1, [31]-[36]; BS v The Queen [2013] VSCA 108, [15].

[39] R v Hill [2004] VSCA 116, [28]; R v Ilic [2003] VSCA 82, [18]; Borthwick v The Queen [2012] VSCA 180, [12].