(a) the acknowledged low purity of the MDMA;

(b) his counsel's characterisation of the tablets as 'rubbish', and the judge's reference to that submission on the plea;

(c) the form in which the MDMA was found, being a combination of pills, broken pills and powder;

(d) the drugs were a mixed substance containing MDMA and ethylone, within which the respective quantities of MDMA and ethylone were both very low;

(e) the drugs were left untouched in the storage unit for a period of 54 days;

(f) the drugs were to be sold wholesale rather than retail; and

(g) no-one undertook any valuation of the drugs.

1. Against that background of fact and principle, the applicant submitted that the judge erred in concluding that the objective gravity of the applicant's offending was serious and his moral culpability high. The error, the applicant argued, stemmed from the judge's erroneous assumption that the applicant was motivated to offend in order 'to earn the large profits available from it'. Such error, he submitted, led the judge to attribute too much significance in the sentencing exercise to the considerations of general deterrence and denunciation, so that the sentencing discretion miscarried.

1. The respondent submitted that the sentencing judge did no more than address those matters relevant to sentencing for trafficking offences in an orthodox fashion. Concerning the judge's comments regarding the seriousness of the applicant's offending,[30] the respondent submitted that - understood in proper context - these comments clearly refer to the offence of trafficking in a large commercial quantity of a drug of dependence itself, rather than to the particular circumstances of the applicant's offending.
2. The respondent accepted that a person convicted of drug trafficking may seek to mitigate their culpability by establishing that they stood to derive little or no benefit personally. However, the respondent emphasised that the applicant - consistent with his position at trial that the drugs were not his - did not lead evidence as to the amount he stood to benefit from his offending. The respondent submitted that the sentencing judge's reference to the 'large profits' available from the applicant's offending merely reflects the judge's finding that it was motivated by greed. The respondent submitted that the description of anticipated profits as 'large' is a relative and subjective term, and one which reflects consistent judicial comment that general deterrence is given particular emphasis in relation to those convicted of trafficking in large commercial quantities of drugs in expectation of the large profits that may be derived therefrom.
3. Regarding matters raised by the applicant relating to the commerciality of his offending, the respondent submitted that:

(a) The authorities relied upon by the applicant to assert the relevance of low drug purity relate to instances of de minimis purity, as opposed to something more than de minimis purity as was the case presently. In any case, the sentencing regime for drug trafficking is quantity-based and, other things being equal, the greater the quantity trafficked, the more serious the offence. To the extent the applicant submitted that the judge ought to have made a finding as to the relative efficacy of the drugs - whether by virtue of their low purity, or in comparison to other drugs of dependence - such a finding would have been speculative and improper.

(b) Generally, trafficking in a large commercial quantity of one drug of dependence is no more or less serious than trafficking in a large commercial quantity of a different drug of dependence. While it is open to an offender to prove that the commercial quantity of the drug trafficked had a fraction of the wholesale or retail value of another drug, the applicant did not seek to do so.

(c) The applicant's emphasis on the distinction between wholesale and retail sale of drugs misunderstands the nature of trafficking, and the differing roles of different individuals within the trafficking hierarchy.

(d) It does not follow from the fact that the drugs were left unattended for some time that they were of low quality, or that the applicant's trafficking was not truly commercial in nature.

1. At trial and on the hearing of the plea, the applicant was represented by experienced senior counsel.[31] On the plea, senior counsel submitted that the approximately $250,000 in cash seen by investigators in the Faraday bag should not be taken into account as informing the business nature of the drug trafficking of which the applicant had been convicted. That submission was rejected by the judge. It originally formed part of the applicant's argument on this application for leave to appeal but was abandoned in oral submissions, correctly in our view.
2. A further submission - relevant to the argument now advanced - related to the purity of the MDMA. The applicant's counsel submitted to the judge that 'purity matters', and that in this case the purity of the MDMA was so low that the MDMA could be described as 'rubbish'.
3. In the exchange that followed, the judge asked how he could conclude, without evidence, that the MDMA was 'rubbish'. More particularly, he questioned how he could conclude whether the tablets in question would provide the 'normal dose of MDMA' that a person would take to enjoy, for example, a music festival or some such other event. There was no answer to this question. No evidence was offered about the efficacy of the MDMA in question at the levels of purity measured by Ms Burke, or about its commercial value.
4. The judge had no evidentiary basis upon which to conclude that the 5.3 kg of MDMA in this case was worth some lesser fraction of the wholesale or retail value of five times a large commercial quantity of some other drug of dependence listed in sch 11, or that the MDMA tablets could only ever have produced a relatively small return. What the judge knew from the evidence was that the applicant possessed a substance containing two drugs of dependence each listed in sch 11, one of which was MDMA, and that the weight of that mixture was over five times the statutory threshold for a large commercial quantity of MDMA in a mixed substance.
5. A further matter raised in submissions before the judge was the question of the applicant's motive. The judge put it to senior counsel for the applicant that the applicant was 35 years of age, came from a 'good family background', was 'highly educated' and it could not be said that his drug trafficking was conducted in order to finance his own drug habit. Those circumstances, the judge suggested, could only lead to one conclusion - namely that the applicant trafficked drugs for the money. Senior counsel agreed that the applicant's conduct defied belief.
6. Against that background, the judge said in his reasons that:
   • the applicant's crime was one of the 'utmost seriousness';[32]
   • since he used drugs only recreationally and came from a background of stability and privilege, he could only have been trafficking the MDMA for profit;[33] and
   • he was engaged in trafficking at the wholesale level (as distinct from being a trafficker on a low rung within the drug trafficking hierarchy),[34]

all of which led the judge to conclude that the applicant's moral culpability was high.

1. There is no error in this reasoning. The offence of trafficking a large commercial quantity of a drug of dependence is, by its very nature, an offence which is objectively very grave. The applicant's role in the trafficking hierarchy, and the fact that profit was his sole motivation, were significant sentencing facts which impacted his moral culpability. The prosecution did not have to prove the anticipated return from trafficking this MDMA in order to establish that the applicant's offence was objectively serious. The applicant offered no evidence to displace the legislative presumption that trafficking 5.3 kg of mixed MDMA was truly commercial in nature. The judge would only have been speculating, impermissibly, to accept a submission that trafficking these particular pills could only have produced small returns far below those to be expected from trafficking a large commercial quantity of MDMA as defined in the DPCS Act.
2. We will briefly address some of the applicant's specific arguments.
3. First, the applicant's reliance on comments made in _Wong - _ to the effect that selecting weight as a 'chief factor' to be taken into account when sentencing was a departure from fundamental principle - is misconceived.[35] The issue in Wong was whether sentences for importing narcotic drugs into Australia might be set by reference to a 'guideline' suggested by the Court of Criminal Appeal in NSW. That guideline created several bands of weights within the statutory categories of 'traffickable quantity' and 'commercial quantity' of narcotic drugs and suggested sentencing ranges applicable to each band.[36] By majority, the High Court found that the use of that guideline led to error. In that context, the court's remarks about the use of weight as the 'chief factor' do not undermine the quantity-based system of sentencing set out under the statutory regime in Victoria, which defines offences by reference to traffickable quantity, commercial quantity and large commercial quantity of a drug of dependence.
4. Secondly, the fact that the drugs were left untouched for a period of 54 days was, as was remarked on the plea, consistent with the 14,069 pills being wholesale stock rather than stock that was available for sale on the quicker-turnover retail market. Further, the conclusion that the applicant was operating at the wholesale level was relevant to the accepted sentencing consideration of the offender's role within the trafficking hierarchy.
5. Thirdly, the absence of any valuation of the MDMA is a problem for the applicant, rather than the respondent. As stated, ordinarily the prosecution does not have to prove any anticipated financial reward to the offender. The prosecution is entitled to rely upon the statutory presumption of value inherent in the quantities prescribed in sch 11 of the DPCS Act. While it may remain open to an offender to seek to prove otherwise, the applicant did not seek to do so in this case. His attempts on his application for leave to appeal against sentence to rely on his own analysis of Ms Burke's certificate, and his reference to other materials that were not presented as evidence before the sentencing judge, could not assist him in establishing a factual error on the part of the judge.
6. Finally, we come to the judge's remarks about the applicant having decided to offend 'to earn the large profits available from it'. The fact that the applicant was trafficking drugs for profit can hardly be doubted. To infer that such profits would be large involves no error when the very designation of large commercial quantity is based upon the capacity of such a quantity to yield high commercial returns, and there was no evidence before the judge to contradict that proposition. In any event, we agree with the respondent's submission that the description 'large' is a relative and subjective term. In context, it was used to engage the legislative intent that those who traffick in large commercial quantities of drugs, lured by greed in the expectation of the large profits that may be derived therefrom, should, by the application of the sentencing principles of deterrence and denunciation, lose their liberty for extended periods of time.
7. In our view, none of the applicant's arguments are capable of establishing that the judge made any error of fact or principle in finding that the offence of which the applicant was convicted was objectively grave, and that the applicant's moral culpability was high. The arguments lack merit, such that an extension of time within which to file an application for leave to appeal against sentence must be refused. The very long delay between sentence and the filing of this application, without adequate explanation,[37] is a further reason for refusing it.

[1] Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 ('DPCS Act'). When mixed with another substance, as it was in this case, a large commercial quantity of MDMA is not less than 1 kg of the mixed MDMA and other substance: DPCS Act, s 70 and sch 11, pt 3.

[2] In oral submissions, the applicant abandoned a second proposed ground of appeal, which was that fresh and compelling evidence in the form of a global pandemic has resulted in acute hardship to the applicant and his family, in light of which the sentence imposed is now excessive.

[3] Criminal Procedure Act 2009, ss 275(1), 279(1).

[4] Madafferi v The Queen [2017] VSCA 302, [11].

[5] McCabe v The Queen [2022] VSCA 139, [10]-[14].

[6] DPP v McCabe [2019] VCC 1808, [3]-[8] ('Reasons').

[9] Ibid [9], quoting Kim v The Queen [2019] VSCA 149, [31].

[18] Lieu v The Queen (2016) 263 A Crim R 173, [41] (Beach and Kaye JJA); [2016] VSCA 277 ('Lieu').

[20] Gregory (a pseudonym) v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, [23]-[24]; [2017] VSCA 151; Sharbell v The Queen [2018] VSCA 324, [63]; Djordjic v The Queen [2018] VSCA 227, [69]; DPP v Fatho & Ors [2019] VSCA 311, [70]; DPP v Goldsmid [2023] VSCA 124, [67] ('Goldsmid').

[21] Quah v The Queen [2021] VSCA 164; (2021) 290 A Crim R 136, [54]-[57]; Goldsmid [2023] VSCA 124, [68].

[23] R v Pidoto [2006] VSCA 185; (2006) 14 VR 269 [12]-[15] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185 ('Pidoto').

[24] Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873, 876 (Jan Wade, Attorney-General), quoted in Pidoto [2006] VSCA 185; (2006) 14 VR 269, [14] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185.

[25] Pidoto [2006] VSCA 185; (2006) 14 VR 269, [38] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185.

[26] DPP (Cth) v Maxwell (2013) 228 A Crim R 218, [28]; [2013] VSCA 50 ('Maxwell').

[28] Pidoto [2006] VSCA 185; (2006) 14 VR 269, [14] (Maxwell P, Buchanan, Vincent and Eames JJA); [2006] VSCA 185.

[29] [2001] HCA 64; (2001) 207 CLR 584, see especially [70] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64 ('Wong').

[31] The applicant represented himself in this Court.

[35] Wong [2001] HCA 64; (2001) 207 CLR 584, [70] (Gaudron, Gummow and Hayne JJ).

[36] Wong [2001] HCA 64; (2001) 207 CLR 584, [35], [67], [70] (Gaudron, Gummow and Hayne JJ).

[37] The applicant filed two affidavits in support of his application for an extension of time within which to file an application for leave to appeal. One was his affidavit sworn 13 May 2021, in which he attempted to explain his delay in filing an application for leave to appeal his conviction. The other, sworn 17 January 2023, was a short affidavit explaining that he was refused an extension of time in which to apply for leave to appeal his conviction, failed in his application for special leave, and had experienced other delays caused by lack of access to legal materials and a computer.