Huynh v The Queen; Au v The Queen [2017] VSCA 216

CRIMINAL LAW - Appeal - Sentence - Drug and other offences - State and Federal offences - Total effective sentence of 9 years' imprisonment with non-parole period 6 years - Parity - Applicant played lesser role than co-offender - Appeal allowed - Appellant resentenced to total effective sentence of 7 years and 6 months' imprisonment with non-parole period 5 years.

1 Phuong Huu Huynh and Allan Boontong Au (for convenience, 'Huynh' and 'Au' respectively) each seek leave to appeal against sentences imposed on them in the County Court on 24 August 2016 for drug and other offences.

2 In our opinion, each application for leave to appeal should be granted, the appeals allowed and the appellants resentenced as set out hereunder.

3 On 24 June 2016, Huynh and Au pleaded guilty to a Commonwealth indictment charging both Commonwealth and State offences. Huynh also pleaded guilty to drug charges on a State indictment, and Au pleaded guilty to related State summary charges. In the result, Huynh received a total effective sentence of 12 years' imprisonment, with a non-parole period of eight years; and Au received a total effective sentence of nine years' imprisonment, with a non-parole period of six years.

4 It is convenient to set out the sentences imposed on each applicant in tabular form:

Import a marketable quantity of a border controlled precursor[2]

Manufacture a marketable quantity of a controlled drug[4]

Pre-traffick in a controlled precursor[5]

11 years' imprisonment with 8 year non-parole period[7]

Possess substances, documents and or equipment for trafficking in a drug of dependence[8]

Possess a precursor chemical (ammonia)[9]

Traffick a drug of dependence (amphetamine)[10]

9 years' imprisonment with 6 years and 6 months non-parole period

5 Cumulation of State sentence on Commonwealth sentence

Manufacture a marketable quantity of a controlled drug

Possess a firearm being a prohibited person[12]

Possess a silencer being a prohibited person[14]

Breaching a suspended sentence[15] (for trafficking a drug of dependence, amphetamine, and deal with proceeds of crime)

11 years' imprisonment with 8 year non-parole period

1. The sentencing discretion miscarried as a result of the manner in which the judge treated the delay between Huynh's incarceration on remand and the final disposition of his proceedings. In particular, the judge erred by:

(a) having regard only to the period between November 2015 and the date of sentence in mitigation of Huynh's penalty; and

(b) finding that the effect of the delay upon Huynh was 'tempered' by Huynh's progress on remand.

(a) the individual sentences imposed on charges 1, 2 and 4 of the Commonwealth indictment;

(b) the individual sentences imposed on charges 3 and 4 of the State indictment;

(c) the overall total effective sentence; and

(d) the overall non-parole period fixed;

are manifestly excessive.

8 Au relies on four grounds in support of his application:

1. The sentences imposed on charges 3, 4, 5, 6, related summary offence 4, orders for cumulation and the non-parole period are manifestly excessive. In particular, insufficient weight was given to [Au's] remorse, plea of guilty, relative youth, significant steps taken towards rehabilitation whilst in custody, the significant delay, the principle of totality, and [Au's] lesser role in the offending.
2. The learned sentencing judge erred in failing to properly apply the principle of delay.
3. The learned sentencing judge erred in failing to take into account a relevant consideration, namely the deleterious effects of imprisonment upon a relatively youthful offender.
4. The learned sentencing judge erred in failing to properly apply the principle of parity.

9 As a result of information provided by the United States law enforcement authorities, the Australian Federal Police ('AFP') commenced an investigation into the importation of prohibited items sent to Australia Post parcel locker accounts.

10 On 28 February 2014, the Australian Customs and Border Protection Service ('Customs') intercepted a consignment originating in the Netherlands addressed to 'Chris Wong' at a parcel locker in Footscray West. The declared contents of the consignment was 'documenten'. Examination of the contents of the consignment revealed two one-litre bottles of liquid labelled 'HPI Racing Power Fuel'. Testing found that the liquid contained 481.8 grams of pure pseudoephedrine (Charge 1, Huynh - Import a marketable quantity of a border controlled precursor).

11 On 21 April 2014, Customs intercepted an Express Mail Service consignment, sent from the United States, addressed to 'Chris Wong' at a parcel locker in North Melbourne. The declared contents of the consignment was 'Montana fudge'. Upon examination of the contents of the consignment, Customs found, concealed within a block of chocolate wrapped in a plastic bag:

• one .40 calibre Smith and Wesson Ruger semi-automatic pistol;

• one Ruger brand 15 round detachable box magazine;

• one Ruger brand nine round capacity detachable box magazine; and

12 Also on 21 April 2014, Customs intercepted a US Postal Service consignment addressed to 'David Nguyen' at a parcel locker in Footscray West. The declared contents of the consignment was 'white fudge and chocolate fudge'. Upon examination of the consignment, Customs found, hidden within blocks of chocolate:

• one 9 millimetre Parabellum calibre semi-automatic pistol in four parts;

13 On 28 April 2014, Customs intercepted an EMS consignment from the United States addressed to 'David Nguyen' at a parcel locker in Footscray. The contents were described as 'replacement Xerox copier HDD for copier'. Upon examination of the consignment, Customs found a piece of computer hardware containing:

• one Glock 15 round capacity detachable box magazine;

• one Glock 10 round capacity detachable box magazine; and

14 Each of the three pistols was examined by ballistic experts and found to be in working condition. The importation of the pistols and detachable box magazines is prohibited[18] (Charge 2, Huynh - Import Tier 2 goods).

15 On 24 June 2014, the AFP conducted a controlled operation to deliver a substituted consignment to a parcel locker in Footscray West addressed to 'Zin Wang'. An automated SMS and email was sent to the account holder for the parcel locker notifying them that the consignment was ready for collection. Shortly after, Huynh was observed by AFP officers driving a Toyota Corolla to the parcel lockers in Footscray West. Huynh was then seen using the key pad and collecting a package, before driving to Au's address in Sunshine North. Later that day, he was seen driving the vehicle in the vicinity of premises in Ascot Vale.

16 Two days later, on 26 June 2014, AFP surveillance observed Au driving the Toyota Corolla in the vicinity of Huynh's address in Sunshine North. Later that day, Au was seen collecting a large parcel from the Australia Post Shop in Sunshine Marketplace. Au was then observed driving to premises in Sunshine West, and entering the premises with the parcel.

17 Late in the afternoon of 26 June 2014, AFP surveillance overserved Huynh and Au unloading boxes and various items from the Toyota Corolla and a Toyota Hiace, and placing them in the garage of premises in Brunswick West.

18 On 27 June 2014, the AFP executed search warrants at Au's residence, Huynh's residence, and at the premises in Brunswick West and Ascot Vale.

19 During the search of Au's address, police found rental paperwork for the Brunswick West premises completed in the name 'Cory Lee', including a photocopy of a New South Wales driver's licence in the name Cory Lee bearing Au's photograph. Police also found 18 Blackberry phones, 36 SIM cards and $3,720 cash. A baton was also located (Summary Offence 4, Au - Possess a controlled weapon).

20 A search of the Toyota Corolla located ammunition and a briefcase containing a silencer (Charge 6, Au - Possess a silencer being a prohibited person). Police also found mobile phones; firearms accessories; documents (including photocopies of 11 driver's licences belonging to unknown persons); keys to a Honda Accord located at Huynh's Sunshine North premises; and keys to the Brunswick West premises. In the boot, police found a pen gun, which upon forensic examination was found to be a .22 Long Rifle calibre home-made device (Charge 5, Au - Possess a firearm being a prohibited person).

21 During the search of Huynh's address, police found many false identification documents - including driver's licences and student ID cards - bearing Huynh's photograph but false names, including 'Chris Wong'. Police also found Medicare cards in false names and a bank card in the name of 'Chris Wong'. Also located was a Lithuanian passport and EU/Lithuanian identification card in the name 'Jimmy Lee', both bearing Huynh's photograph.

22 In Huynh's bedroom, police found buprenorphine and naloxone tablets, Blackberry phones, an ankle holster and $2,100 cash. Also found was a quantity of amphetamine wrapped in foil (0.995 grams pure) and a quantity of heroin (0.1 grams pure) (Charge 7, Huynh - Possess a drug of dependence).

23 Police also located a fingerprint-activated portable safe. Huynh opened the safe, in which police located a firearm magazine and a box of ammunition. Forensic analysis was performed on a number of electronic devices seized from Huynh's bedroom. In a Honda Accord at the premises, police found a firearm magazine, batons and two parcels addressed to 'Cory Lee' and 'Chris Wong' respectively.

24 Victoria Police forensic scientists attended the Ascot Vale premises, and identified a number of items consistent with the existence of a clandestine laboratory, including chemicals (such as caustic soda, acetone, xylene, isopropyl alcohol, sulphuric acid and epsom salts), plastic funnels, filter papers, latex gloves and packing materials. Huynh's fingerprints were located on a glass tray in the sink. Forensic analysis of glass vials and other items seized tested positive for traces of amphetamine, methylamphetamine, and ephedrine and/or pseudoephedrine (Charge 3, Huynh and Au - Manufacture a marketable quantity of a controlled drug).

25 During the search of the Brunswick West premises, members of the AFP located items in a rubbish bin consistent with a clandestine laboratory, including gloves, measuring cups, acetone smelling towels and gloves for handling glass. Au's fingerprints were located on a disposable glove and a cardboard box in the kitchen cupboard. Huynh's fingerprints were found on multiple glass trays under the kitchen sink. Substances were seized for forensic testing. Analysis confirmed the presence of 697.6 grams of pure amphetamine (Charges 3 and 4, Huynh and Au - Manufacture a marketable quantity of a controlled drug; Pre-traffick in a controlled precursor).

26 In July 2013, Customs advised Victoria Police that they had located a suspicious importation of scientific glassware, commonly used in the manufacture of amphetamine. As a result, members of the Victoria Police Clandestine Laboratory Squad commenced 'Operation Clinky'.

27 Between 17 June and 20 November 2013, several parcels addressed to Huynh were retrieved at the Melbourne and Sydney Gateway facilities. The parcels were examined and found to contain assorted laboratory scientific glassware.

28 On 30 September 2013, police surveillance operatives observed Huynh in the foyer of an apartment complex in Maidstone sign for and pick up a parcel. (During the course of the investigation, police identified an apartment in the Maidstone complex as a residence of Huynh's.)

29 On 15 January 2014, members from the Clandestine Laboratory Squad executed a warrant at Huynh's residence in Maidstone. During a search of the premises, police located an extensive array of scientific glassware consistent with the items that had been detected by Customs and a large quantity of unknown chemicals, liquids and powders, which were contained in various plastic and glass containers (Charge 1, Huynh - Possess substances, documents and or equipment for trafficking in a drug of dependence).

30 A number of the substances found in the containers were analysed and found to contain 49.1 grams of amphetamine (Charge 3, Huynh - Trafficking a drug of dependence, amphetamine).

31 Other substances found in the containers were analysed and found to contain 614.2 grams of methylamphetamine (Charge 4, Huynh - Trafficking a drug of dependence, methylamphetamine).

32 Two of the substances analysed were found to contain cocaine (Charge 5, Huynh - Possess a drug of dependence, cocaine).

33 A search warrant was also executed on a white Mercedes Vito van located outside the apartment complex in Maidstone. Police located a large cylinder containing approximately 123 kilograms of ammonia (Charge 2, Huynh - Possess a precursor chemical).

34 In his reasons for sentence, with respect to delay the judge said:[19]

Mr Huynh, you are almost 30 years old. I take your plea of guilty into account. The chronology in this matter demonstrates that as to the state matters a resolution was reached relatively quickly upon a second committal mention in October 2014. The Commonwealth matters which arise from February 2014 had a longer investigative phase leading to charges being laid up to December 2014.

At a contested committal hearing in March 2015 pleas of guilty were resolved with joint pleas listed in November 2015. I do not consider that this period, given the extensive investigation, was unusually delayed. Thereafter the pleas had to again be adjourned, one as a result of the argument as to utilitarian benefit being resolved and again due to defence counsel unavailability. Although clearly neither of these eventualities can be sheeted home to you, Mr Huynh, they are not unusual circumstances and they arise from time to time. Nevertheless, in my view it is appropriate that I take this delay from November 2015 to now in consideration when I come to my sentence, particularly as there has been a period spent in reclusion.[[20]]

This is somewhat tempered by your counsel's submission that this period has not only been beneficial to you physically in terms of your addiction but also because it has provided the structure and desire to move forward ...

35 Huynh's counsel submitted that this passage from the judge's reasons betrayed error. In essence, the gravamen of the complaint made under cover of the first ground was that 'fairness dictated that his time on remand - in its entirety - mitigate his sentence for the time he was kept in suspense awaiting his sentence and a fortiori for the rehabilitation he had demonstrated during that period', and that 'there was no basis to "temper" the first because of his progress on the other'.

36 Counsel for the respondents submitted that notwithstanding that the judge did not take into account the entire period Huynh spent on remand when assessing the weight to be given to delay, that extra period of delay (some 16 months) and the overall period of delay (just over two years) was not, in any event, so 'inordinate' or 'extraordinary' as to have attracted substantial weight in mitigation. It was contended that this submission was borne out when the delay in Huynh's case was viewed against the length of delays which appellate courts have said were so unreasonable, 'lengthy' or 'extraordinary and inordinate'[21] as to warrant a significant reduction in sentence.

37 In our view, fairness dictated that the whole period of the delay - during which the matter was hanging over Huynh's head, for some time, thereby keeping him in a state of suspense - should have been taken into account. Moreover, his positive strides towards mitigation should not have 'tempered' that consideration, but rather should have been viewed as a further aspect of mitigation flowing from the delay.[22]

38 If the judge intended the word 'tempered' to have its ordinary, literal meaning, then it must be said that there is substance in the first ground. Given our conclusions on ground 2, however, it is unnecessary finally to determine whether the judge's remarks concerning the issue of delay would have been sufficient to vitiate his exercise of the sentencing discretion.

39 Counsel for Huynh submitted that the sentences on charges 1, 2 and 4 of the Commonwealth indictment, and on charges 3 and 4 of the State indictment (and the total effective sentence and non-parole period) are manifestly excessive. Several mitigating features were relied upon, including:

• Huynh's early pleas of guilty (entered at committal before evidence was called);

• Huynh's 'modest' criminal history;[23]

• Huynh's long-standing drug addiction;[24]

• the continued support of his family and its importance for his prospects; and

• 'an unusually impressive and determined commitment to reformation, evidenced by his progress on remand and its implications for his future prospects'.

40 We are unable to see anything wrong with the sentences imposed on the Commonwealth indictment. Charge 1, importing a marketable quantity of a border controlled precursor, involved the importation of 481.8 grams of pure pseudoephedrine - the marketable quantity is 3.2 grams[25] - in circumstances where the wholesale value of methamphetamine capable of being manufactured from the pseudoephedrine was between $140,000 and $160,000. A sentence of six years' imprisonment on this charge is, in our view, stern, but within the available range (albeit, it must be said, at the uppermost extremity of that range). Charge 4, pre-trafficking in a controlled precursor, involved the pre-trafficking of 107.4 grams - about a quarter of the marketable quantity[26] - of a controlled precursor. The sentence of three years' imprisonment imposed on this charge is also certainly stern - the maximum penalty is seven years' imprisonment - but is within range when considered against the backdrop of Huynh's overall drug offending. We note in this regard that no argument ultimately was advanced that the sentence on charge 3 - seven years' imprisonment for manufacturing a marketable quantity of a controlled drug - was manifestly excessive. Further, we note that, in at last tacit recognition of the principle of totality, the judge ordered relatively modest cumulation of the sentences on charges 1 and 4 upon the sentence on charge 4.

41 As to Huynh's importation of firearms, charge 2 - a 'rolled-up' charge - by three consignments he imported three semi-automatic pistols and associated magazines, and for two of the pistols, ammunition, in circumstances in which the sentencing judge was satisfied to the criminal standard that the firearms and related items that were imported by Huynh 'were part and parcel of the business of drug manufacturing and trafficking' in which he had involved himself. The sentence of four years' imprisonment imposed on charge 2 was, we consider, unremarkable.

42 With respect to the two charges of trafficking in a drug of dependence on the State indictment - charges 3 and 4, involving respectively amphetamine and methylamphetamine - in written submissions the respondents 'accepted that the individual sentences imposed for counts 3 and 4 are at the upper end of sentences imposed for this type of offending', but 'nonetheless submitted that the sentences are within range when regard is had to all relevant factors'. In essence, that submission was maintained on the hearing of the application in this Court.

43 In our view, however, the sentences on charges 3 and 4 on the State indictment are - notwithstanding Huynh's prior conviction for trafficking heroin - manifestly excessive, and must be set aside. Having regard to all relevant features, including the matters in mitigation urged by Huynh's counsel, we would substitute individual sentences of four years' imprisonment on charges 3 and 4, but would otherwise confirm the other individual sentences imposed on both indictments. It will be necessary to make consequential orders.

44 We note that Huynh fled Vietnam as a refugee when he was three years of age. He has a long-standing drug addiction, fed by his own brother (who was sentenced to a substantial term of imprisonment for trafficking in a large commercial quantity of illicit drugs). Although Huynh completed year 12, he could not engage in tertiary studies because of his drug use, and his employment has been sporadic. He was married in 2009, but separated from his wife after only a year. During his time in custody, Huynh has taken steps towards rehabilitation - 'clean' urine samples supporting that notion - has worked full-time as a peer support officer, and has been instrumental in facilitating the integration of new prisoners.

45 We will grant Huynh leave to appeal against sentence, allow the appeal and resentence the appellant. Sentences of four years' imprisonment will be substituted on charges 3 and 4 on the State indictment. The sentence on charge 4 will be the base sentence. Three months of the sentences of imprisonment on charges 1, 2 and 5, and six months of the sentence on charge 3, will be cumulated upon each other and the sentence on charge 4. The total effective sentence on the State indictment is thus five years and three months' imprisonment, upon which we would fix a non-parole period of three years. Pursuant to s 6AAA of the Sentencing Act 1991 we declare that but for the plea of guilty, we would have imposed a total effective sentence on the State indictment of seven years and three months' imprisonment, upon which we would have fixed a non-parole period of five years. Further, we will make orders the effect of which will be to cumulate one year and three months of the sentences on the State indictment on the total effective sentence on the Commonwealth indictment.

46 The total effective sentence on both indictments will thus be 11 years' imprisonment, upon which we will fix a new global non-parole period of seven years.

47 We will confirm all other orders made by the County Court.

Manifest excess, delay, youth and parity - Grounds 1, 2, 3 and 4

48 On charges 3 and 4 on the indictment - manufacturing a marketable quantity of a controlled drug and pre-trafficking a controlled precursor - Au received the same individual sentences (of seven years' and three years' imprisonment respectively) as Huynh, despite the prosecution's acceptance that Au had a lesser role. Counsel for the Commonwealth Director of Public Prosecutions submitted on the plea:

In terms of his role, the Crown would submit [Huynh has] got a greater role than Mr Au in the drug manufacture enterprise because he has imported the pseudoephedrine, he has links to both the laboratories at [Brunswick West] and [Ascot Vale], he's got the literature on how to manufacture the drugs.

In effect, the Crown submits Mr Huynh, with assistance from Mr Au, was running effectively a business and that also involves sourcing false identification documents which he used to conduct the importation, for instance - those documents were seized from his premises in that name, Mr Huynh. Obviously the locker was opened in a false name. He sourced chemicals, Your Honour. There were invoices for chemicals found at his house again addressed to Chris Wong, which is another name that was used by him of the false ID located at his house. The offending wasn't isolated but occurred over a period of four months. ...

49 Despite the prosecution's acceptance that Au had a lesser role than Huynh in the relevant offending, the judge did not in terms acknowledge that fact, in his reasons for sentence simply stating that Au's 'role was adequately described by the prosecutor' (and referring to some aspects of his activities). In those circumstances - and given that the judge imposed the same sentences on Au on charges 3 and 4 as were imposed on Huynh - it is difficult to escape the conclusion that Au's lesser role was not given adequate weight in the judge's sentencing synthesis. We would thus uphold ground 4.

50 Given that Au will have to be sentenced afresh as a result of his success on ground 4, the other grounds largely fall away. That said, we would not uphold the contention that the sentences on any of the other charges were manifestly excessive (ground 1), or that in Au's case the judge erred in failing properly to apply 'the principle of delay' (ground 2).

51 As to youth (ground 3, and part of ground 1), Au is now aged 28 years. Although we recognise that there is no fixed point beyond which an offender can no longer be considered youthful, and acknowledging that there may be cases where an offender who is aged 23 or 24 years might still be considered relatively youthful,[27] in our view it is a stretch to suggest that at the age of 28 years Au might attract the principles which inform the sentencing of youthful offenders. Youthful offenders often attract leniency because their immaturity may have deprived them of the insight and self-control possessed by an adult; and it is generally recognised that there is greater potential for youthful offenders to be rehabilitated, such potential rehabilitation likely being impeded by incarceration in an adult prison. For the purpose of determining whether an offender is 'youthful', the relevant date is the date of sentencing,[28] and as the age of the offender increases, the force of the general proposition that rehabilitation should be the primary sentencing consideration for youthful offenders diminishes.[29]

52 We doubt that at age 27 years when sentenced[30] Au could ever be considered 'a relatively youthful offender'. Additionally, Au has a prior conviction for trafficking amphetamines, for which he received a suspended sentence of imprisonment. That, too, would diminish any significance that might otherwise be attached to youth.

53 In imposing sentence on Au, we take into account that Au, the eldest of four children, was born in Australia after his family came to the country as refugees from Cambodia in the late 1970s. It seems that Au was bullied at school - he did not complete year 12 - and commenced using ice and other drugs at the age of 16 years. He has since struggled with addiction. Au was unable to continue a cabinet-making traineeship due to injury, but has worked in a variety of jobs (including warehousing and dry-cleaning, and in bakeries). Apart from his conviction for trafficking illicit drugs, he has a limited criminal history. Whilst in custody, Au has worked as a billet, has helped to induct other prisoners and has engaged in a number of courses (including several drug rehabilitation courses). A favourable report of Ms Anne Hooker, Youth Development Officer, and certificates showing clean drug screens, support the view that Au has reasonable prospects of rehabilitation.

54 We will grant Au leave to appeal against sentence, allow the appeal and resentence the appellant. On charge 3 on the Commonwealth indictment, we would impose a sentence of six years' imprisonment; and on charge 4, we would impose a sentence of two years' imprisonment. We will make orders which will have the practical effect of producing cumulation of three years and six months of the sentences imposed upon the Commonwealth sentences upon the total effective sentence of four years' imprisonment on the State offences (the sentences for which will remain undisturbed).

55 The total effective sentence will thus be seven years and six months' imprisonment, upon which we will fix a non-parole period of five years. Pursuant to s 6AAA of the Sentencing Act 1991 we declare that but for the plea of guilty, we would have imposed a total effective sentence of nine years and six months' imprisonment, upon which we would have fixed a non-parole period of seven years.

56 We will confirm all other orders made by the County Court.

[1] By s 19 of the Crimes Act 1914 (Cth), cumulation of federal sentences on other federal and State sentences is achieved by the court directing when the federal sentences are to commence. This is a remarkably clumsy procedure which, experience demonstrates, is prone to error.

[2] Criminal Code (Cth), s 307.12(1). The maximum penalty is 15 years' imprisonment.

[3] Customs Act 1901 (Cth), s 233BAB(5). The maximum penalty is 10 years' imprisonment.

[4] Criminal Code (Cth), s 305.4(1). The maximum penalty is 25 years' imprisonment.

[5] Criminal Code (Cth), s 306.4(1). The maximum penalty is seven years' imprisonment.

[6] Drugs, Poisons and Controlled Substances Act 1991 (Vic), s 73(1). The maximum penalty is five years' imprisonment.

[7] This reflects the oral declaration made by the sentencing judge, although the Record of Orders signed by the judge records that: 'Pursuant to s 6AAA of the Sentencing Act 1991, the following is entered in the records of the Court: on the Commonwealth matters, the total effective sentence that would have been imposed but for the plea of guilty would have been 11 years imprisonment, with a non-parole period of 6 years, 6 months.'

[8] Drugs, Poisons and Controlled Substances Act 1991 (Vic), s 71A. The maximum penalty is 10 years' imprisonment.

[9] Drugs, Poisons and Controlled Substances Act 1991 (Vic), s 71D. The maximum penalty is five years' imprisonment.

[10] Drugs, Poisons and Controlled Substances Act 1991 (Vic), s 71AC. The maximum penalty is 15 years' imprisonment.

[11] The Record of Orders dated 24 August 2016 signed by the judge showed the sentence on charge 4 as being two years' imprisonment. At a mention on 8 November 2016, the judge made it clear that the correct sentence was three years' imprisonment, and indicated that the orders would be amended to reflect that fact.

[12] Firearms Act 1996 (Vic), s 5(1). The maximum penalty is 10 years' imprisonment.

[13] For the State offences - charges 5 and 6 on the indictment, together with the two summary offences - the judge sentenced Au to a total effective sentence of four years' imprisonment, the sentence of three years' imprisonment on charge 5 being the base sentence and the suspended sentence of one year's imprisonment was restored and wholly cumulated. A non-parole period of one year was imposed for those State matters. The judge ordered that the sentence on charge 3 of seven years' imprisonment should commence after the expiration of that non-parole period. Further, the sentence on charge 4 of three years' imprisonment was ordered to commence two years before the expiration of the sentence imposed on charge 3, resulting in one year's cumulation and a total effective sentence of nine years' imprisonment. The judge then fixed a non-parole period of six years.

[14] Firearms Act 1996 (Vic), s 5(2). The maximum penalty is eight years' imprisonment.

[15] Sentencing Act 1991 (Vic), ss 149D(3) and 83AB. Apart from restoration of the sentence originally suspended, the maximum penalty for breach of a suspended sentence is three months' imprisonment.

[16] Control of Weapons Act 1990 (Vic), s 6(1). The maximum penalty is 12 months' imprisonment.

[17] The judge made the declaration orally, but it was not included in the signed Record of Orders.

[18] See Customs (Prohibited Imports) Regulations 1956 (Cth).

[20] It seems that the judge's reference to November 2015 is to an adjournment of Huynh's plea caused by the Commonwealth Director of Public Prosecutions giving late notice of an intention to rely on Cameron v The Queen (2002) 209 CLR 339 so as to deprive Huynh of the utilitarian benefit of his guilty pleas, the additional delay thereby caused being a matter which could not be sheeted home to Huynh. See DPP (Cth) v Thomas (2016) 315 FLR 31, 81-3 [139]-[149]; Kim v The Queen [2016] VSCA 238 [27].

[21] R v Merritt [2007] VSCA 1; (2007) 14 VR 392, 400 [35]-[36]; Zhou v The Queen [2014] VSCA 123, [16].

[22] Arthars v The Queen (2013) 39 VR 613, 620-22 [25]-[29].

[23] Huynh was convicted at the Melbourne Magistrates' Court on 16 December 2008 of trafficking and possessing heroin and sentenced to a community based order of 12 months' duration, with a condition that he perform 200 hours of unpaid community work.

[24] Huynh was born on 28 December 1986 and is now 30 years of age. A psychological report suggested that Huynh became addicted to heroin at age 13 years, and that his heroin addiction peaked at a $700 per day habit.

[25] See Criminal Code Regulations 2002 (Cth), reg 5F.

[26] A marketable quantity of a controlled precursor is 400 grams. See Criminal Code Regulations 2002 (Cth), reg 5C.

[27] Cf DPP v Lovett [2008] VSCA 262.

[28] R v Mills [1998] 4 VR 235, 241.

[30] Au's date of birth is 18 April 1989.