1 I have read the draft reasons of Hansen JA and agree with those reasons.

2 This is an appeal against sentence imposed by a judge in the Trial Division on 20 July 2010 on a single count of trafficking in a large commercial quantity of methylamphetamine. In sentencing, the judge had to take into account a sentence imposed in the County Court on 16 December 2009.

3 The history is this. On 16 December 2009, the appellant, following a plea of guilty, was sentenced in the County Court on three counts of trafficking simpliciter in cannabis, methylamphetamine and MDMA between 1 April 2006 and 11 June 2006, to a total effective sentence of five years and four months' imprisonment, with a non-parole period of three years. For present purposes some explanation of these offences is necessary. Count 1 involved 308 grams of cannabis. Count 2 related to trafficking in methylamphetamine and alleged three different instances of manufacture of amphetamines with others and also of buying and selling, in a large number of transactions, 350 grams of amphetamines valued at about $90,000. A head sentence of four-and-a-half years was imposed on that count. Count 3 related to trafficking in MDMA and involved buying 62 tablets and discussions in which the appellant offered to both sell and manufacture that drug during that period. The maximum sentence on those offences was 15 years.

4 It so happened that on 19 August 2009, following a mention of the above proceeding in the County Court - at which the appellant, being on bail, appeared - the appellant was found by the police in possession of a large commercial quantity of methylamphetamine. He was arrested that day and charged with the single count of trafficking. He remained in custody thereafter.

5 Following a plea of guilty, on 20 July 2010 the appellant was sentenced to eight years' imprisonment, five years and eight months of which to be served

cumulatively on the sentence then being served. That produced a total effective sentence of 11 years. Pursuant to s 14(1) of the Sentencing Act 1991 (Vic) (the Act), a new single non-parole period of eight years was fixed. The judge declared under s 6AAA of the Act that but for the plea of guilty he would have imposed a term of imprisonment of 10 years with a non-parole period of seven years and six months.

6 The appellant relies on the following grounds of appeal:

1. In light of the judge's findings, the sentencing judge erred by:

(b) ordering that only two years four months of that sentence be served concurrently with the sentence the appellant was already serving; and

(c) fixing a new non-parole period of eight years' imprisonment.

7 A third ground based on the principle in R v Liang and Li[1] was abandoned following the decision of the High Court in Elias v The Queen; Issa v The Queen.[2] The hearing of this appeal was held over pending that decision.

8 During the hearing the court gave the appellant leave to add a fourth ground, namely:

That the judge erred in the exercise of his discretion by failing to take into account the low level of purity of the drug the subject matter of Count 1.

9 On 19 August 2009, at around 2.10pm, the appellant was seen driving erratically along the Monash freeway, near Stud Road. He collided with railings in the centre of the freeway and continued driving. Police were alerted and eventually found the appellant standing next to the open passenger front door of the car, which was parked on the centre medium strip, near the South Gippsland overpass.

10 The appellant told police he was just collecting items from the car. He became increasingly agitated. Police searched the bag which the appellant had been holding. The bag contained plastic bags (containing what the police believed to be methylamphetamine) and scales. The appellant claimed not to know to whom the bag belonged.

11 Police searched the car and found another bag in the rear footwell under the passenger seat. That bag contained smaller bags containing what the police believed was also methylamphetamine. Two of the bags were later found to contain a cutting agent. There were some small zip lock bags and other drug paraphernalia.

12 Analysis revealed a total of 1.3241 kilograms of substance which contained methylamphetamine. Purity ranged from 1.6 per cent to 20 per cent (the majority of the substance was at the lower end for purity - around street level or slightly above).

13 The appellant was arrested that day and taken to Narre Warren Police Station for interview. A search of the appellant's wallet revealed a small snap-lock bag containing a small amount of a substance that spot-tested positive for methylamphetamine.

14 The appellant made a no comment record of interview. He was remanded in custody on 20 August 2009.

15 Ultimately, a contested committal was fixed for 24 March 2010. Before then, on 15 February 2010, the results of analysis of the material were forwarded to the appellant's legal representatives.

16 Prior to 24 March 2010, the appellant indicated that he would plead guilty. Witnesses were not required to attend court.

17 The appellant was aged 29 at the time of offending and is now aged 33. He was born in Melbourne of Egyptian parents. He had a good family background and completed VCE. He began a civil engineering course at Victoria University, but without completing it turned to a business course at TAFE. Without completing that course, he commenced a business transporting cars, for which purpose he borrowed money for the purchase of a vehicle. However, in about 2001, following an accident, the business failed. This led to financial difficulties and he lost the vehicle. Then he worked as a courier for other companies until his mother became ill and subsequently died in 2005.

18 The appellant had prior convictions from one court appearance relating to driving matters and to which the judge gave no weight in sentencing. Most significant was the death of his mother from breast cancer in 2005. As to that, the judge noted that a forensic psychologist, David Ball, in a report dated 20 May 2010, stated that:

My view is that Mr Ibrahim's recent offences stem from his unresolved grief and grief-related anger at himself and the world for the death of his mother. He has sought to cope with his grief by abusing cannabis and the highly addictive methylamphetamine and has sought funds to support his addiction by trafficking.[3]

19 His Honour considered that view to be simplistic, in the light of his observations in relation to the appellant's addiction and when regard is had to the amount of the substances involved, in both the present and the prior offending.

20 It is to be noted that the appellant has the support, in his imprisonment, of his father, brother and girlfriend who visit him.

21 His Honour rejected a submission that the appellant had been a mere courier. The submission had been made without any supporting evidence or explanation. In so concluding his Honour noted that:

1. The presence of the cutting agent and scales might readily lead to either of two conclusions. First, that the drugs had already been cut down to the purity which was found or, alternatively, that all the necessary equipment was present, including small plastic bags, to enable the methylamphetamine to be prepared for sale at street level.
2. You have not proffered any explanation for your conduct, except through your counsel, who put to me that you were merely a courier of the drugs and other items on behalf of an unknown third party. You made a no comment record of interview and you chose not to give or call evidence before me on that subject.
3. On the plea a report dated 20 May 2010 from David Ball, a forensic psychologist, was tendered on your behalf. He said in that report:

Mr Ibrahim simply explained the charges as self medicating his unresolved grief and trafficking in drugs to support himself and his addiction.

1. To find that you were a mere courier would be a factor in mitigation, and as such would require you to prove that fact on the balance of probabilities.
2. It will emerge in these reasons that you were on bail at the time of offending for similar offences, which were due to be dealt with in the County Court. In fact, you had attended the County Court that very day in relation to the case.
3. I am not prepared to accept that you were merely a courier. I am not, on the evidence, able to say precisely what your role was, but I do find that you were actively involved in the trafficking of this methylamphetamine. At the time of your arrest, the police found in your wallet a small bag containing methylamphetamine. I am prepared to accept that you were a user of methylamphetamine and addicted to its use at the time of this offending. That conclusion appears to be supported to some degree by your driving on this occasion and by your actions at the time you were approached by the police.

22 His Honour then observed that the appellant's situation, and to a large degree the seriousness of his offending, was to be viewed in the light of his plea of guilty to, and the sentences imposed on, the offences dealt with in the County Court in 2009. He had pleaded guilty to those counts on 2 February 2009.

23 His Honour referred to a report by another forensic psychologist, Ian Joblin, dated 11 August 2009, which referred, among other things, to the appellant's disappointment at being involved in the 2006 offences and stated that: the appellant could not cope with his mother's death; he had no history of drug use or involvement with the police; he had argued with his father and moved to an apartment with his then cooffender and commenced using drugs; and that in late 2006 he turned himself into the police and returned home, since when he had been drug free. Mr Joblin referred to the appellant as having had 'a strong, almost pathological grief reaction ... an extreme or inappropriate response to bereavement, with associated strong feelings of persistent depression and hopelessness'. In this situation he had moved to the city and lived a lifestyle he could not afford. There was thus, Mr Joblin said, 'a significant link between the reaction to his mother's death and his lifestyle at the time of the offences in 2006'. Mr Joblin concluded with the statement that the appellant 'was emphatic that he is no longer using drugs'.

24 His Honour stated that this account appeared 'an untruthful and incomplete history' since it was submitted that the appellant was addicted to and using drugs at the time of the offence on 19 August 2009.

25 His Honour accepted that the appellant had had a significant reaction to the death of his mother, but the death occurred four years prior to the offending. Further, he had been arrested in late 2006, and that, combined with the need to observe bail conditions and a large number of court appearances, ought have reminded him of the folly and seriousness of engaging in such conduct.

26 His Honour then stated that it was difficult to separate the two periods of offending. It is apparent from the context that his Honour did not mean by this that there had been a continuity or nexus of offending. Rather, his Honour was addressing the matters of the relationship between the appellant's addiction and grief. He said that:

In your case, it is difficult to separate your two periods of offending. In that context, it is difficult to say how your addiction is to be regarded. Although your grief may have led you to alter your lifestyle, it is that lifestyle which led to using drugs, which resulted in your addiction. You then seem to have willingly engaged in the conduct which led to your appearance in the County Court. Although you remained on bail from December 2006 until August 2009, you do not appear to have done anything about your addiction in the sense of seeking any treatment or counselling for it.[4]

27 As to the relevance of addiction to sentencing his Honour referred to the judgment of Buchanan JA in R v McKee, R v Books,[5] and found that the appellant's offending:

... was at such a level, particularly in the absence of evidence that you were no more than a courier, it is very difficult to give much weight to your addiction for the purpose of mitigating your sentence. Very few, if any, of the features adverted to by Buchanan JA exist in your case, except the possible influence of the death of your mother that I have described above. It is an important part of your background and I do take it into account.[6]

28 His Honour then referred to and took account of the following matters:

1. The offence occurred while the appellant was on bail. In that light the prospects of rehabilitation were to be viewed with caution, although with some hope for the future. His Honour accepted that the appellant had expressed remorse to Mr Ball, but how that remorse was to be measured, separate from his appreciation of the consequence of his actions to himself, was hard to judge. Nevertheless, his Honour accepted that the appellant regretted what he had done.
2. The offending took place on one day. As against that, however, was the quantity involved. Certainly the offence would have been more serious had it occurred over several days or more and involved larger quantities.
3. The offending was at the lower end of seriousness for the offence. However, the maximum penalty was life imprisonment, the most serious category of offending.
4. The fact that the appellant was on bail was important in two ways.

(a) It aggravated the seriousness of the conduct, as to which the appellant had had strong warnings following his earlier conduct not to be involved in conduct of this kind.

(b) It brought into question s 16(3C) of the Act which provided that 'Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that...'

1. The principle of totality in sentencing, as to which he had regard to the fact that the appellant had been in custody since 19 August 2009, and the sentence imposed in the County Court. His Honour said that he would order some concurrency.
2. The plea of guilty. While the case was very strong, if not overwhelming, the court and the community had been saved a good deal of time and inconvenience.

30 The appellant's submission was developed in this way. Counsel first drew attention to the quantity and purity of the methylamphetamine. He submitted that on the plea it was not appreciated by counsel or the judge that the low purity of the drug was a factor of significance in sentencing. He submitted that the County Court judge who had sentenced in R v Trajkovski,[7] which counsel for the Crown had referred to his Honour, had disregarded the low level of purity. The emphasis had rather been on quantity, and the offending was regarded as being at the lower end of seriousness for the offence. Further, on the plea counsel for the Crown had invited his Honour to have regard to the sentence of 11 years imposed in Trajkovski on a count of trafficking in a large commercial quantity of methylamphetamine. Trajkovski had been found in possession of 3.924 kg of methylamphetamine mix, with a level of purity of 0.05%. This was approximately 1.96 g of pure methylamphetamine. There was an appeal, and his Honour was informed of that, but the appeal was not decided until June 2011; see Trajkovski v The Queen. [8]

31 In Trajkovski, Weinberg JA (in whose reasons Ashley JA and Hargrave AJA agreed) stated that the 'actual weight of the drug, in its pure state, was miniscule'.[9] Weinberg JA noted that the judge had stated that the low purity of the drug in the mixture was not to be given significant weight.[10] In stating that this approach was incorrect, Weinberg JA said:

There is no reason, in principle, why the fact that the mixture contains what is plainly only the most miniscule quantity of a drug of dependence, and is therefore unlikely to produce the deleterious effects normally associated with a much larger amount of that particular drug, albeit in a mixture, should not be regarded as a significant factor to be taken into account in assessing the gravity of the offending.[11]

32 Counsel then submitted that his Honour did not pass sentence on this basis, as he should have. That is to say, on the basis that in the present case the drug was of such a low level of purity as to constitute a significant factor to be taken into account in sentencing. He submitted that his Honour had been invited to and, in the absence of indication to the contrary, was to be taken as having sentenced on the same erroneous basis as the County Court judge in Trajkovski. And, as the Court of Appeal reduced the sentence in Trajkovski, so also here it can be concluded that his Honour had erroneously assessed the objective seriousness of the offending.

33 To complete the picture counsel referred to Nguyen v The Queen[12] and Kapkidis v The Queen.[13] In their joint judgment in Nguyen, Weinberg JA and King AJA, in dealing with a count of trafficking in a commercial quantity of MDMA, stated that:

... when considering the gravity of any drug trafficking offence, that it is the quantity of the drug that is trafficked that is of greatest reliance. In the present case, the appellant was in possession of a vast number of tablets, but the purity of the drug was extraordinarily low.[14]

34 Subsequently, in Kapkidis, the low level of purity of drugs trafficked arose for consideration. In their joint judgment Maxwell P and Redlich JA referred to the decisions in Trajkovski and Nguyen that the low purity of the drug should be regarded as a significant factor in assessing the gravity of the offending. In considering this their Honour's referred to R v Pidoto[15] which held that in sentencing an offender under the quantity-based trafficking provisions a judge ought not have regard to the relative harmfulness of the drug in question. They concluded:

In our view, nothing said in Trajkovski and Nguyen detracts from what this Court made clear in Pidoto. There is no place for considering the relative harmfulness of a drug in sentencing an offender for trafficking offences. Where the purity of the amount trafficked is 'de minimis' it may be taken into account, but save for such exceptional circumstances, the relative purity of a mixed quantity of a drug of addiction does not bear upon the objective gravity of the offence.[16]

35 In my view the appellant's submission fails at several levels.

36 In the first place, the level of purity of the methylamphetamine was not 'de minimis', 'miniscule', or so 'extraordinarily low' as to be so characterised. In Trajkovski the level of purity was 0.05%; it was far higher in the present case. The cases are quite different.

37 In the second place, even if it be considered that the level of purity was so low as to constitute 'exceptional circumstances', his Honour did not state whether and if so how he took into account the level of purity as being relevant to sentencing. Certainly he regarded the offending as being at the lower end of seriousness. But, more generally, except to the extent stated, it is not known what his Honour thought of the matters put forward by the Crown, including the reference to Trajkovski. It is not to be presumed that his Honour proceeded on an erroneous basis. That would be speculation. At one point it was suggested that we could request a report from the judge as to whether he took the level of purity into account in formulating the sentence. With respect, for reasons that include the time now passed, it would not be appropriate to seek to inquire into the judge's mind in the sentencing process.

38 Counsel for the appellant relied on the circumstance that, as the judge found, it was difficult to separate the two periods of offending, and further that the subject offending occurred on one day and was at the lower end of seriousness for offending of this type. In these circumstances, and with particular regard to s 16(3C), totality demanded greater concurrency. It was submitted that the total effective sentence and non-parole period, bespeak a significantly greater degree of criminality than that in which the appellant engaged. There should have been a greater degree of concurrency in the sentences. Alternatively, the sentence imposed for trafficking should have been moderated.

40 It was open to the judge to order the cumulation he did. While the subject offence was the more serious, it was committed while on bail for the County Court matters, indeed the offence occurred within an hour of the hearing in the County Court. But the County Court matters were also serious involving three different drugs, a wide range of activity and trafficking as a business operation. The effect of his Honour's sentence was that three years of the conduct comprised in the County Court matters was cumulated upon the sentence imposed on the more serious offence of trafficking in a large commercial quantity of a drug of dependence. This was within the range within which it was open to his Honour to fix a period of cumulation, and was appropriate.

41 Counsel for the appellant submitted that the sentence of eight years must be considered in the light of the total effective sentence of 11 years and the new non-parole period of eight years.

42 It was submitted that it was excessively severe to impose such a sentence on an offender aged only 30, who had pleaded guilty, whose offending occurred on one day, whose criminality was at the lower end, was an addict, and who had evidenced remorse. Overall, the sentence exceeded that which was open in the exercise of a sound discretionary judgment.

43 I reject this submission. His Honour's careful and balanced reasons demonstrate attention to relevant matters. None of the matters mentioned were overlooked but were taken into account. In my view the sentence of eight years was open to be imposed. So also, as mentioned, was the order for cumulation.

44 That leaves the matter of the non-parole period which again in my view was appropriate to be fixed upon in the light of the relevant facts and circumstances. They included the two separate episodes of offending, that each episode involved trafficking drugs of dependence, that the second episode was more serious, that the prospects of rehabilitation were regarded with 'caution' and referred to with 'some hope', and that the later offending was committed while on bail and immediately following an appearance in court when bail was extended. Considerations of general and specific deterrence were relevant. In my view it was open to his Honour

to determine upon the new single non-parole period as that which justice required to be served to meet the needs of the sentences imposed.

45 For these reasons, the appeal should be dismissed.

[1] (1995) 82 A Crim R 39, 44.

[2] [2013] HCA 31.

[4] R v Ibrahim [2010] VSC 333, [17].

[5] [2003] VSCA 16.

[7] [2009] VCC 1748.

[8] (2011) 32 VR 587.

[12] [2011] VSCA 139.

[13] [2013] VSCA 35.

[14] Nguyen v The Queen [2011] VSCA 139, [16].

[15] [2006] VSCA 185; (2006) 14 VR 269.

[16] Kapkidis v The Queen [2013] VSCA 35, [25].