Hoang v The Queen [2018] VSCA 86

Court of Appeal (Vic)|2018-04-09|Before: Priest JA, Leish JA

DPP (Cth) v Hoang [2017] VCC 399 (Judge Brookes)

CRIMINAL LAW - Appeal - Sentence - Attempting to possess a commercial quantity of border-controlled drug and trafficking in a large commercial quantity of drug of dependence (cocaine) - Sentenced to ten years' imprisonment with six year non-parole period - Whether manifestly excessive - Youthful offender - Guilty plea - Appellant had principal role in criminal enterprise - Appeal dismissed - ; applied.

1 Pursuant to leave granted on 12 October 2017,[1] the appellant, aged 23 years,[2] appeals against a total effective sentence of ten years' imprisonment, with a non-parole period of six years, imposed upon him in the County Court for Commonwealth and State drug offences, upon the sole ground that the sentence is manifestly excessive.[3]

2 Thus, on 21 February 2017, the appellant pleaded guilty to a Commonwealth charge of attempting to possess a commercial quantity of a border-controlled drug, cocaine,[4] between 31 October and 18 November 2015 (charge 1); and a State charge of trafficking a large commercial quantity of a drug of dependence, cocaine,[5] on 18 November 2015 (charge 2).[6]

3 On 12 April 2017, the judge sentenced the appellant on charge 1 to be imprisoned for nine years with a non-parole period of five years; and on charge 2, to be imprisoned for eight years with a non-parole period of five years. The judge directed that the sentence on the first charge commence in one year[7] - on 12 April 2018 - thereby achieving a total effective sentence of ten years' imprisonment, upon which he fixed a non-parole period of six years.

4 Operation Costena, which was concerned with investigating the activities of the appellant, was commenced by a Joint Organised Crime Task Force, comprising the Australian Federal Police (AFP), Victoria Police and the Australian Border Force ('ABF'). It commenced on 13 October 2015, and ended with the arrest and charging of the appellant on 18 November 2015.

5 The investigation employed lawfully intercepted telephone communications - it was determined that the appellant used six telecommunication services - and physical surveillance. Evidence gathered by these means suggested that the appellant - who entered Australia in January 2014 pursuant to a Subclass 573 Higher Education Student Visa - was involved in a scheme to import a commercial quantity of cocaine into Australia from Vietnam.

6 Charge 1 related to two consignments containing cocaine, which the appellant attempted to possess between 6 October 2015 and 12 November 2015. The offence involved the shipping of printer toner cartridges addressed to the 'Flint Group' in the name of a non-existent employee, 'Michael Lorenzo'. On 31 October 2015, a consignment ('the first consignment') containing metal printing cylinders arrived at the DHL freight facility in Melbourne addressed to 'Michael Lorenzo' of the Flint Group. The consignment was examined by ABF officers on 6 November 2015. They discovered 4,924.7 grams of cocaine (2,681.4 grams of which was pure cocaine). On 10 November 2015, the appellant was recorded speaking to a contact in Vietnam about the first consignment. In this conversation he was instructed to represent to DHL or others that the consignment contained samples to be used for marketing purposes.

7 The following day, 11 November 2015, the appellant received photographs of a computer screen displaying a United Parcel Service website that was tracking an additional consignment to be delivered on 12 November 2015 ('the second consignment'). On 12 November 2015 the second consignment arrived at the Australia Post Gateway Facility in Melbourne addressed to a 'Michael Lorenzo' of the 'Flint Group. The contents of the package were described as cartridge toner. Subsequent examination, however, found the package to contain 997.4 grams of cocaine (693.2 grams being pure cocaine).

8 Charge 2 related to two separate packages of cocaine located by police in the appellant's car and at his premises on 18 November 2015. These packages were possessed for the purpose of sale. Over several weeks the appellant was recorded giving instructions to a co-offender, Hung Le Duy Nguyen ('Nguyen'), as to how to prepare the drugs for commercial sale; and in conversations with Vietnamese contacts, he was recorded discussing the securing of customers for distribution and sale of the cocaine in Victoria. At the appellant's premises, investigators found 2,989.1 grams of cocaine (2,104.3 grams being pure cocaine); and 704.8 grams of cocaine (499 grams being pure) was located in his vehicle. Fraudulent drivers' licences, including a licence in the name of 'Michael Lorenzo', were also discovered.

9 The appellant was interviewed by police following his arrest on 18 November 2015. In the course of the interview, the appellant denied having any involvement with the drugs, or any knowledge of the false identification in the name of 'Michael Lorenzo' found in his car.

10 For the purposes of charge 1, the estimated value of the 3,374.6 grams of pure cocaine is approximately $1,264,800 wholesale, and $3,370,890 at street value. The estimated value of the 2,603.3 grams of pure cocaine the subject of charge 2 is approximately $1,360,800 wholesale, and $2,600,580 at street value.

11 The threshold for a commercial quantity of the border controlled drug, cocaine, for the purposes of charge 1 is 2,000 grams;[8] and the threshold for a large commercial quantity of a drug of dependence for the purposes of charge 2 is 750 grams.[9]

12 Counsel for the appellant told the judge that, in January 2014, the appellant came to Australia at age 18 from central Vietnam, where he had lived with his parents and siblings on a small farm worked by his parents. He attended the local school, and completed secondary schooling, doing well at school. The appellant was awarded a place at a Vietnamese university, but had ambitions to travel and study overseas. Melbourne was chosen.

13 The appellant enrolled in a business management course at the Melbourne campus of the University of Central Queensland, the $20,000 enrolment fee being paid by his father. It was a precondition that the appellant improve his English language skills prior to commencing the business management course. He thus enrolled with the Baxter Institute.

14 Upon his arrival, the appellant had no family or other ties to the Vietnamese community in Melbourne. He lived in St Albans, and, since he had no income in Australia, his family provided him with a monthly allowance of $2,000 to cover rent and other required expenses.

15 Life in a big complex city was difficult after farm life in rural Vietnam. From the outset the appellant struggled to read English street signs and to manage catching public transport. Because of his lack of English, he became reclusive, and would only shop at businesses where he could communicate in Vietnamese. His flatmates were also Vietnamese, which did nothing to improve his English.

16 By the beginning of 2015, the appellant's lack of English was such that he was unable to begin his business management course. At around that time, severe storm damage to his parents' orchard compromised their ability to send money to the appellant. He told his family that he would support himself. Thus, the appellant worked as a labourer, picking fruit and vegetables, which allowed him to pay rent and bills, but he had difficulty financially, and working with other Vietnamese labourers did little to improve his English skills. The appellant's associates told him that money could be made in 'other ways', and this was what ultimately led the appellant to become involved in trafficking.

17 Counsel for the appellant submitted that he had come to Australia with legitimate plans, but had made some very bad decisions. It was a 'monumentally bad decision' to do what he did in circumstances where he needed to support himself and was finding it difficult to get by.

18 It was conceded by the defence that by the time the investigation commenced, the appellant was more than 'just a mule', having a higher level of involvement in the offending. He was, however, being directed from above as to the price of the cocaine, and how it might be on-sold, and was obeying the requests of his superiors in Vietnam.

19 At the time of the plea, the appellant had been in custody for one year and three months, with prospects of remaining in custody for a considerable time to come. Whilst on remand, his English had improved dramatically. He had completed courses whilst in custody, including in kitchen operations, and in written and spoken English. He worked in the kitchen at the Melbourne Remand Centre (MRC), in a trusted position, and had worked hard and behaved well whilst incarcerated.

20 It was contended that the appellant's time in custody would be particularly onerous, since he is separated from his family who cannot visit him. He is permitted to phone Vietnam to talk to family about twice a week, but has nobody to visit him in custody. Due to riots at the MRC, at the time of the plea the appellant was still locked down for approximately half of his waking day, this being another circumstance that made the appellant's time in custody more onerous than it ought to be. So much should be reflected in some way in the sentence that is imposed.

21 Counsel submitted that the appellant has remained drug free in custody. He was remorseful for his conduct, regrets doing the wrong thing and is sorry for what he has done. The offending was committed in circumstances where the appellant was overwhelmed with his situation and did not want to let his family down. He wanted to be able to resume studies in Australia and complete the business management course so that his father had not wasted his money.

22 It was submitted that the appellant fell to be sentenced in a less severe way than might otherwise be expected because of his youth, absence of prior convictions in both Australia and Vietnam, plea of guilty and the unfortunate circumstances that led to his offending. Counsel submitted that the appellant is a young offender who has made terrible decisions that he will live to regret for many years. He will spend a long time in prison and will be deported at the end of his sentence.

23 The prosecutor submitted that, although it is clear that the appellant had superiors overseas, he was the principal receiver of the cocaine in Australia. He had contacts in Melbourne, including a person skilled in extracting cocaine. Moreover, he used an associate, Nguyen, to create a false Victorian driver's licence in the name of Michael Lorenzo. He also used Nguyen to contact DHL because of his own lack of English. This was evidence, the prosecutor submitted, that the appellant was higher up in the organisation than Nguyen. The appellant also spoke directly with his superiors in Vietnam.

24 It was submitted that it was clear that the attempted possession of the consignments was for the purpose of the appellant's trafficking the cocaine. He had the relevant contacts, and was to be responsible for its distribution within Melbourne. The appellant was motivated by greed and stood to make a considerable profit.[10] There was a level of sophistication in the offending, as demonstrated by sending the consignment to an innocent company. The appellant was not a street level dealer. He was moving drugs worth hundreds of thousands - if not millions - of dollars, and was entrusted with the task of negotiating the sale of large quantities.

25 General deterrence must be given significant weight, the prosecutor submitted, and the sentence imposed must be of such severity that it will deter others from engaging in these activities. The serious nature of the offending meant that adequate punishment and general deterrence are the primary sentencing considerations. It was submitted that the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it otherwise might be given.

26 Finally, the prosecution submitted that there ought to be significant cumulation between the sentences imposed on charges 1 and 2, since the conduct in both is very different. Charge 1 involves attempting to possess cocaine, whereas charge 2 involves its trafficking. So much demonstrates the level at which the appellant was operating. He was a principal in relation to the attempted possession, and a principal in relation to the trafficking, notwithstanding that he had superiors overseas.

27 With respect to the plea of guilty, the respondent noted that it was entered in the face of an overwhelming prosecution case, but conceded that the public was spared the expense of what would have been a reasonably complicated trial.

28 Putting the principles derived from Mills[11] to the fore_,_ counsel for the appellant submitted that, in light of the appellant's youth, prospects of rehabilitation and remorse, the sentence imposed by the sentencing judge is manifestly excessive. Counsel 'acknowledged that general deterrence is a relevant sentencing consideration in relation to drug importation offences, even where the relevant offender is youthful';[12] and that in the appellant's case, 'the seriousness of the offending and the need for general deterrence justified a sentence of imprisonment'. But it was contended that 'the lengthy total effective sentence and non-parole period received does not reflect the third proposition in Mills, that a youthful offender may be afforded a shorter period of imprisonment'.[13] Furthermore, counsel submitted that the sentencing judge contravened the 'first proposition' in _Mills - _ 'Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises'[14] - since the sentence imposed suggests that the appellant's youth was not the 'primary consideration' animating the judge's exercise of the sentencing discretion. Counsel also sought to draw comparisons between the appellant's case and Pollard;[15] to distinguish Tran;[16] and to rely on Duncan.[17]

Resisting the contention that the sentence was manifestly excessive, the respondent emphasised that the first charge was a 'rolled up' charge.[18] The criminality for which the appellant was to be sentenced therefore was greater than for a charge involving only one episode of criminal activity. Charge 1, it was submitted, involved two separate instances of offending, constituted by the appellant attempting to possess two separate consignments of drugs. The first consignment contained 2.681 kilograms of pure cocaine - substantially more than the applicable commercial quantity of two kilograms[19] - and the second consignment contained 693.2 grams of pure cocaine, representing 34 per cent of the applicable commercial quantity (and 346 times the marketable quantity, two grams).[20] Hence, the first charge encompassed the attempted possession of 3.375 kilograms of pure cocaine, the wholesale value of which was estimated to be $1,264,800, the 'street level' value being approximately $3,370,890.
The respondent submitted that, with respect to his role concerning charge 1, the appellant used the address of an unidentified male to receive one of the consignments, kept track of its arrival and communicated with others about the consignment's expected delivery. He was instrumental in attempts to take possession of the consignments, including by giving directions to Nguyen to prepare false documentation in the name of an addressee of one of the consignments and to call DHL about the package. The respondent submitted that it could also be inferred from the appellant's activities that the quantities of cocaine that he attempted to possess were for the purposes of subsequent trafficking by him.
As to charge 2, the respondent submitted that it also involved two instances of offending, comprising the appellant trafficking in the 499 grams of pure cocaine located in his car and the further 2.104 kilograms seized from his residential premises. The two packages were possessed by the appellant for the purposes of sale. Since charge 2 was a 'rolled up' charge, the respondent submitted, the criminality for which the appellant was to be sentenced was greater than for a charge involving only one episode of criminal conduct. The appellant trafficked in 2.603 kilograms of pure cocaine, being 3.47 times the minimum large commercial quantity of 750 grams pure cocaine,[21] in circumstances where the wholesale value of the cocaine was estimated to be $1,360,800, the street level value being approximately $2,600,580.
The appellant's role in the trafficking enterprise embraced by charge 2, the respondent submitted, was that of principal. Given that the appellant possessed large quantities of cocaine, both in his car and at his home - where the accoutrements of trafficking (such as a vacuum bag sealer, multiple false licences and different mobile telephones) were located - the appellant clearly was a high-level trafficker.

33 Having regard to the appellant's activities, the respondent submitted, it is plain that the appellant's role overall was that of Melbourne-based principal for an international drug importation and trafficking enterprise. The appellant's offending represented high-level involvement in a sophisticated business, his motivation being greed. It should readily be inferred that the appellant's purpose was one of profit.

34 In Nguyen,[22] Johnson J (with whom Macfarlan JA and RA Hulme J agreed), set out a number of principles relevant to the appellant's attempted possession of the cocaine:[23]

The importation and possession offences now contained in the Criminal Code (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts 'a quantity-based penalty regime' by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143; 183 A Crim R 534 at [2].
Before turning to the individual sentences imposed in this case, it is appropriate to refer to principles applicable to sentencing for drug importation offences. I include in this offences of attempting to possess a quantity of an unlawfully imported border controlled drug contrary to s 307 Criminal Code (Cth).
The following general propositions emerge from the authorities:

(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee [[2007] NSWCCA] at [27];

(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; 108 A Crim R 464 at [19]; R v Lee at [25];

(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];

(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen [(2001) [2001] HCA 64; 207 CLR 584] at [64]; R v Lee at [23]-[24];

(e) the statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80 at [110]; Sukkar v The Queen (No 2) [2008] WASCA 2; (2008) 178 A Crim R 433 at [46];

(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271 at [104]; R v Lee at [32];

(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v The Queen at [64];

(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 at [286]; R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 at [114];

(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474 at [6];

(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]- [57]; R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451 at [20]- [25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v The Queen [2007] NSWCCA 147 at [47]; Onuorah v The Queen [2009] NSWCCA 238; (2009) 76 NSWLR 1; 197 A Crim R 430 at [49];

(k) where offenders are not young ... the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458 at [98];

(l) where an offender ... is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise: El-Ghourani v The Queen [2009] NSWCCA 140; (2009) 195 A Crim R 208 at [33]- [37];

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;

(n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong [(1999) [1999] NSWCCA 420; 48 NSWLR 340] remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s 16G Crimes Act 1914 (Cth): R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; (2004) 61 NSWLR 63; 149 A Crim R 1 at [65]- [66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40];

...

35 When he attempted to possess and to traffick, respectively, commercial and large commercial quantities of cocaine, at age 20, the appellant was youthful. He pleaded guilty early; and, as the sentencing judge found, his prospects of rehabilitation are 'good'. His time in custody is liable to be more onerous for him than for many other prisoners because of his limited English skills (albeit they are improving) and his isolation from family. These are all matters of significant mitigation.

36 One cannot, however, lose sight of the fact that the two offences that the appellant committed each carry maximum sentences of life imprisonment; or that the appellant attempted to possess, and actually possessed for the purposes of sale, very substantial quantities of cocaine, valued - whether at wholesale or street level - at millions of dollars. The appellant played a principal role in a criminal enterprise concerned to import large quantities of cocaine into this country and to sell it for substantial profit.

37 In this regard, it must be remembered that the propositions in Mills are intended to be general only, the considerations underlying the primacy of youth as a factor in sentencing being: first, the offending may have been the product of youthful immaturity, reflected in the offender's lack of insight or self-control; secondly, a youthful offender may be more amenable to rehabilitation than a more mature offender; and, thirdly, incarceration in an adult prison is calculated to impede, rather than advance, a youthful offender's rehabilitation.[24] As the degree of seriousness of relevant criminal conduct increases, however, the mitigating effects of an offender's youth will decrease. Hence, generally speaking, where the degree of criminality of an offence requires deterrence, denunciation, just punishment and protection of the community to assume prominence in the sentencing equation, the weight to be attached to youth is reduced correspondingly (although not wholly extinguished).[25]

38 As the judge in this case observed, the appellant's role with respect to charge 1 was 'pivotal' in furtherance of an enterprise to import cocaine for the purposes of sale in Australia. The appellant was 'instrumental in arranging details concerning the attempt to possess the two consignments', and had 'no superiors' in the organisation in Melbourne.

39 With respect to charge 2, the judge found that his trafficking 'was intended to become an ongoing and profitable enterprise', in circumstances where, once again, there was nobody superior to the appellant within the organisation in Melbourne. The appellant was 'integral to the importation, processing and converting the cocaine to its final selling form', and to 'negotiation with potential wholesale customers and the sale of the cocaine'. He 'answered to no one in Melbourne and gave direction to others', having 'a degree of autonomy and authority' in his dealings and the way he operated within Australia. The judge observed that, although the appellant 'did answer to the owner of the cocaine in Vietnam', he clearly was 'in a position of power and trust in the operation and can be regarded not as a mere courier or middle man ... but a principal in this offending'.

40 Given his pivotal role in the criminal enterprise, the appellant's moral culpability is high. Moreover, general deterrence and the need for stern punishment must be given prominence in any sentence imposed upon him. So much was made clear in Wong,[26] when it was observed with respect to offences involving drug importation that:[27]

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

41 When proper regard is had to the very serious nature of, and the appellant's role in, the offending, the contention that the sentence imposed is manifestly excessive cannot be upheld. The individual sentences of nine years' imprisonment on the first charge, and eight years' imprisonment on the second, notwithstanding the appellant's youth (and other mitigating circumstances), are well within the range of sentences open in the sound exercise of sentencing discretion. Further, the total effective sentence of ten years' imprisonment, achieved by cumulation of one year, is also well within the appropriate range. Moreover, we consider that the appellant's youth and prospects of rehabilitation are given appropriate recognition in the non-parole period, which equates to sixty per cent of the total effective sentence.

42 For the foregoing reasons, the appeal must be dismissed.

[1] Hoang v The Queen (Unreported, Victorian Supreme Court of Appeal, Priest JA, 12 October 2017).

[2] The appellant's date of birth is 17 March 1995. He was aged 20 when he committed the relevant offences, and was 22 when sentenced.

[3] Initially, the appellant relied on nine grounds. Three grounds - grounds 1, 2 and 3 - were abandoned at the leave hearing, and leave to appeal was refused on a further five grounds - grounds 4 to 8 inclusive - no election having been made to pursue those grounds. The original grounds were as follows:

1. The learned judge erroneously treated the applicant as one who had a leading role within the organization in Melbourne of importing and trafficking in cocaine on a very significant scale.

2. The learned judge erred in directing that the sentence on Charge 1 should commence one year from the sentencing date.

3. There is manifest error in the sentences of 9 years and 8 years for attempting to possess a large commercial quantity of border-controlled drug, namely cocaine and trafficking in a large commercial quantity of a drug of dependence, namely cocaine respectively. Alternatively, the learned judge failed to provide adequate reasons for imposing these individual sentences.

4. The applicant suffered double jeopardy in respect of the sentences imposed on him by the Court.

5. The learned judge erred in giving no weight to the fact that the applicant posed no risk whatsoever to the community by reason, inter alia, that he would be deported from Australia upon completion of his prison sentence.

6. The substantial disparity in sentence between the applicant (ten years with a minimum non-parole period of six years) and his co-offender [DAU] (four years with a minimum non-parole period of two years) evinces error in the exercise of the sentencing discretion.

7. The learned judge erred in imposing a combined non-parole period of 6 years [60% of the head sentence].

8. The learned sentencing judge failed to give due weight to the principles of totality and proportionality.

[4] Criminal Code (Cth), ss 11.1(1) and 307.5(1). The maximum penalty is life imprisonment.

[5] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71. The maximum penalty is life imprisonment.

[6] He had proceeded by way of straight hand-up committal in the Magistrates' Court on 4 November 2016, and had pleaded guilty to both charges.

[8] See Criminal Code (Cth), s 301.4, and Criminal Code Regulations 2002 (Cth), Schedule 4, item 41.

[10] Counsel cited Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673.

[11] R v Mills [1998] 4 VR 235, 241 (Batt JA, Phillips CJ and Charles JA concurring) ('Mills').

[12] Citing R v Mandala [1999] VSCA 159, [23]-[25] (Winneke P); and Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673, 681-2 [34] (Maxwell P).

[15] R v Pollard [2010] VSCA 272.

[17] Duncan v The Queen [2010] VSCA 92.

[18] Citing R v Richard [2011] NSWSC 866, [65(f)]; R v De Leeuw [2015] NSWCCA 183, [116]; DPP (Cth) v Watson [2016] VSCA 73; (2016) 259 A Crim R 327, 363 [110] (Priest JA).

[19] See Criminal Code Regulations 2002 (Cth), Schedule 4, item 41.

[22] R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106 ('Nguyen').

[23] Ibid 126-8 [70]-[72] (emphasis added). See also Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673, 681-3 [33]-[34], in which Maxwell P cited the propositions in Nguyen with approval.

[24] Mills, 241; Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 53-5 [34]-[36] (Redlich JA) ('Azzopardi').

[27] Ibid 607-8 [64] (Gaudron, Gummow and Hayne JJ) (citation omitted; emphasis added).

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