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[2014] VSCA 174
General information, not legal advice.
Court of Appeal (Vic)
2014-08-18
Priest JA, Hansen JA
Original judgment source is linked above.
DPP v McNaughton (Unreported, County Court of Victoria, Judge Tinney, 25 July 2013)
CRIMINAL LAW - Sentencing - Appeal - Multiple drug offences - Conspiracy to traffic cannabis, trafficking methylamphetamine, possession of substances and equipment for trafficking and possession of precursor chemicals Parity - Whether sentencing judge mistook appellant's role - Whether sentence manifestly excessive - Application for leave refused and appeal dismissed.
1 On 2 July 2012, the appellant (now aged 50), pleaded guilty in the County Court to conspiracy to cultivate a drug of dependence (one charge, charge 1); trafficking in a drug of dependence (five charges, charges 2, 3, 4, 5 and 6); possession of substances and equipment for trafficking (one charge, charge 7); and possession of a precursor chemical (one charge, charge 8). He was sentenced on 25 July 2013, according to the table immediately following, so as to produce a total effective sentence of six (6) years and four (4) months' imprisonment, upon which a non-parole period three (3) years and 10 months' imprisonment was fixed:
Conspiracy to cultivate a drug of dependence[1] (cannabis)
Trafficking in a drug of dependence[2] (methylamphetamine)
Trafficking in a drug of dependence[3] (ecstasy)
Trafficking in a drug of dependence[4] (cocaine)
Trafficking in a drug of dependence[5] (MDA)
Trafficking in a drug of dependence[6] (LSD)
Possession of substances and/or equipment for trafficking[7]
Being in possession of precursor chemical[8]
8 years and 6 months' imprisonment, with a non-parole period of 6 years.
2 A judge of this Court granted the appellant leave to appeal on all but one of the 11 grounds in the Notice seeking leave to appeal against sentence. The appellant has elected to have his application for leave to appeal on that ground, ground 1(b), (c) and (d),[9] determined by the Court.
3 It is unnecessary to set out the grounds in full. In summary:
4 For the reasons that follow, I would refuse leave to appeal on ground 1, and dismiss the appeal with respect to grounds 2 to 11 inclusive.
5 It is necessary briefly to describe the appellant's offending.
6 From early December 2008, the appellant became the target of a police task force, 'Petra'. At that time, he lived at an address in Bendigo; rented a storage unit in Harcourt; and rented a room at a property in Clydesdale (Yandoit).
7 Visual surveillance, telephone intercepts, and listening and tracking devices in and on the appellant's vehicles, were used by police in their investigation.
8 Charge 1 alleged a conspiracy with a co-offender, Richard McHardy, between 1 March 2009 and 1 April 2009, to cultivate a cannabis crop.
9 Telephone intercepts showed a connection between the appellant and McHardy (who had recently served a term of imprisonment for cultivation of a commercial quantity of cannabis). They became involved in a conspiracy to cultivate cannabis.
10 On 1 March 2009, the appellant was recorded discussing with McHardy that McHardy's job would be to look after the crop. Police patrols and shifts in the Red Cliffs area were also discussed. That same day the appellant and McHardy travelled from Bendigo to Red Cliffs or Mildura. They looked at a number of properties in the Red Cliffs area. The appellant was recorded on a listening device saying to McHardy, 'The coppers at Red Cliffs work till five o'clock and it's basically cop free after five o'clock at night'; and the next day he said to McHardy, 'There's half a dozen in Red Cliffs on the internet, I'll print copies and we'll go back and check 'em all'.
11 Two days later, on 3 March 2009, the appellant and Mr McHardy discussed lights, pumps, power, lamps and getting paperwork; and on 4 March and 6 March 2009, the appellant spoke on the telephone to Peter Pohl, who was cultivating cannabis, so as to source about '80 cuttings'.
12 When arrested on 1 April 2009, McHardy was in possession of lights, shrouds, grow bulbs, grow tubs, fertiliser and an electrical bypass, all of which are used in the hydroponic cultivation of cannabis.
13 Upon his arrest on 1 April 2009, the appellant was in possession of a piece of paper with two house diagrams, together with a list of equipment used in the hydroponic cultivation of cannabis - 'Panda plastic, Bud Swell, heaters, fans, large carb filter, HPS, MH, tubs, ressis, pumps'. Documents related to the possible purchase the house inspected on 1 March 2009 were also located.
14 In essence, the appellant's role in the conspiracy was to finance the acquisition of the Red Cliffs property - which was to be used to grow the crop - for $90,000, and to supply the necessary hardware and cannabis seedlings. McHardy's role was to live at the premises and care for the cannabis crop it was intended to grow.
15 Surveillance showed that the appellant also had a connection with co-offender, Gary McMillan, whom he had met in 2007 or 2008. McMillan was a methylamphetamine 'cook'.
16 The appellant trafficked methylamphetamine supplied by McMillan (charge 2). It seems that McMillan also made a quantity of MDA and gave it to the appellant, the MDA later being seized by police at Kangaroo Flat and Harcourt.
17 Tracking devices were placed in the appellant's vehicles on 31 January 2009. At 9:13am on that date, the appellant was surveilled travelling to his self-storage facility in Harcourt, where he had a storage unit under the name 'Drew Naughton'. (He was also surveilled that day travelling in the vicinity of McMillan's house.) When searched by police on two occasions, the storage facility was found to contain chemical equipment capable of being used for the manufacture of methylamphetamine.
18 On 20 February 2009, the tracking device on the appellant's Ford car placed it for 39 minutes in the vicinity of McMillan's address in Preston. The following day, 21 February 2009, a listening device was placed in the appellant's other vehicle, a Nissan. That same day, a search warrant was executed at the storage unit in Harcourt, revealing a cache of glassware, hardware and chemicals commonly used in the manufacture of amphetamines. (Nothing was seized, although photographs of the items in situ were taken.) Also that same day, a search warrant was executed at the appellant's residence in Kangaroo Flat. Police found hardware commonly used in the manufacture of amphetamine, and hexamine tablets (which are capable of being used for manufacturing methylamphetamine). It seems that McMillan had supplied the appellant with the hexamine tablets.
19 On 27 February 2009, the appellant was tracked to McMillan's residence for 17 minutes from 3:31pm, and for 22 minutes from 8:17pm; and his Nissan car was tracked to the vicinity of McMillan's premises on several occasions throughout March 2009.
20 Police arrested the appellant on 1 April 2009. He was found in possession of the materials earlier referred to relating to the cultivation of cannabis (charge 1 - conspiracy to cultivate cannabis), together with traffickable amounts of methylamphetamine (part of charge 2 - traffick methylamphetamine), MDMA, cocaine, MDA and LSD (charge 3, 4, 5 and 6).
21 Following the appellant's arrest, the Kangaroo Flat residence was searched and the following items were located:
• methylamphetamine (part of charge 2 - trafficking methylamphetamine); MDMA (part of charge 3 - trafficking ecstasy); cocaine (part of charge 4 - trafficking cocaine); MDA (part of charge 5 - trafficking MDA); and LSD (charge 6 - trafficking LSD) were seized; as were documents and equipment, including hardware, scales and an electric hotplate (part of charge 7 - possessing equipment for trafficking);
• equipment which was for the purposes of trafficking in nitro-methane, a pre-cursor chemical (part of charge 7; charge 8 - possessing precursor chemical); and
• a large amount of cash, jewellery and casino chips.
22 The appellant's motor vehicles were also seized.
23 During a search of the storage shed at Harcourt on 1 April 2009, the following items were located:
24 In the room rented by the appellant in Clydesdale (Yandoit), electronic pocket scales and 10.4 grams of methylamphetamine were also located (part of charge 2 - trafficking methylamphetamine).
25 When interviewed by police, the appellant gave 'no comment' answers.
The appellant's submissions on the plea hearing
26 Initially, in July 2012, the appellant indicated an intention to plead guilty. Following an application to do so, however, on 16 June 2013 he changed his plea to one of not guilty. He again changed his plea to one of guilty on 16 July 2013, and a plea hearing was conducted.
27 On the plea, the appellant's counsel tendered a report by a consultant and forensic psychologist, Patrick Newton (exhibit 2), which showed that the appellant had lived a difficult life. He was, however, an intelligent man who is capable of learning and undertaking a professional career when he gains qualifications.
28 Counsel submitted that, since his release on bail, the appellant had been drug-free, and was determined to remain so. This bore on his prospects of rehabilitation.
29 Several reports concerning the appellant's medical situation were also tendered (exhibits 3 and 5), as were a bundle of urine analysis reports demonstrating his drug-free status (exhibit 4). The medical reports showed that the appellant had undergone gastric lap band surgery, and as a result is more fit and more employable than previously, and is thus less inclined to be dependent upon stimulants than he once was. He suffers from sleep apnoea and treats that condition with a CPAP (constant positive air pressure) machine. The appellant continues to suffer with debilitating phobias, although the psychological and counselling support the appellant had received had made a substantial improvement to his approach to life and way of dealing with things.
30 Documents evidencing the appellant's studies at Victoria University - he was undertaking a Bachelor of Science degree, specialising in chemistry and biotechnology - were tendered (exhibit 6). A bundle of personal references (exhibit 7) were also tendered, and two character witnesses gave positive viva voce evidence. They disclosed, so it was submitted, that the appellant's outlook generally was positive.
31 Counsel submitted that remorse was demonstrated by the appellant's plea of guilty, his abstinence from drug use, his attendance at counselling, and his commitment to study. It was argued that the time at which the plea of guilty was entered does not necessarily reflect the level of remorse, which can be seen in Mr Newton's report describing the appellant's change of attitude, his advances in counselling, and his commitment to change and in pursuing a professional life.
32 It was submitted that a custodial sentence will be more difficult for the appellant because of his phobias, his sleep apnoea, and adjustments necessary following his gastric lap banding surgery. Thyroid function and diabetes will require monitoring. These factors will increase the custodial burden on the appellant. It was also pointed out that he appellant would be unable to continue with his current university course if he were to receive a custodial sentence because it involved extensive practical coursework.
33 Although counsel adverted to Verdins,[18] he did not distinctly rely on any particular limb.
34 Finally, counsel submitted that there ought to be substantial concurrency between the sentences on each of the charges, and that a non-custodial sentence would not be outside the range of appropriate sentences.
35 The sentencing remarks were elaborate. I will set out their essential aspects.
36 Mr Newton's psychological report was taken into account. The report suggested, the judge remarked, that the appellant expressed apparent remorse; but due to the appellant's several deliberate changes of plea, and the sense in Mr Newton's report of a reluctant or grudging acceptance of guilt, the judge was led to have substantial doubt as to the presence of remorse. Further, the judge observed that Mr Newton had found that the appellant was suffering from intense anxiety and had obtained treatment, and there was a reference in the report to the possibility of a paranoid personality disorder. No Verdins principles were, however, attracted, although the fifth limb of Verdins had separate application to the appellant's phobias.
37 The judge noted that the appellant has a number of health complaints, including sleep apnoea, for which he requires a CPAP machine, and dietary need associated with his gastric lap band surgery. Although it was not clear whether the conditions individually or in combination are likely to increase his custodial burden, the judge thought that the appellant's physical conditions and the panic disorder or phobia referred to in the materials will to some degree, increase the custodial burden.
38 Despite being quite late, the guilty plea had strong utilitarian value. A lesser sentence would be passed because of it. Delay was identified as a significant matter in mitigation. The appellant's criminal history was of no weight.
39 His Honour had regard to current sentencing practices, but thought them to be of limited utility, he being required to achieve his own instinctive synthesis.
40 The appellant, the judge said, had good prospects of rehabilitation, if he remained drug free. He had taken steps in furthering his education and had engaged a counsellor. His prospects will be improved by obtaining a qualification and becoming employable in a lawful endeavour.
41 General deterrence, the judge observed, is of real importance in this kind of case. Just punishment was also a consideration. The need to protect the community is a relevant purpose of sentencing, but to some extent it was reduced because of the appellant's progress. His Honour thought that, in light of the findings made in relation to the progress of the appellant's rehabilitation and his prospects for future rehabilitation, the need for specific deterrence was reduced to a degree, but it was still a relevant sentencing purpose. Recognising that a crushing sentence was to be avoided, the extent of cumulation between the individual sentences needed moderation, although some cumulation - and quite sizeable cumulation in some instances - was required.
42 Ground 1 has several aspects. The appellant contended that the judge erred in his characterisation of the appellant's role in the conspiracy, and erred in his assessment of the appellant's criminality. It is also contended that the judge failed to have proper regard to the range of sentences imposed in other cases of cannabis cultivation. In my opinion, none of these contentions has substance.
43 The appellant submitted, in effect, that the sentencing judge should have found that the conspiracy was moribund by 6 March 2009. This submission was not accepted, the sentencing judge finding that the conspiracy continued beyond that date. It is important to note, however, that the sentencing judge was of the view that the end date of the conspiracy had little bearing on the sentence he was to impose, and that he would not have imposed a lesser sentence had the conspiracy ended on 6 March 20092.
44 In my view, it was open to the judge to be satisfied that the conspiracy persisted beyond 6 March 2009. In careful reasons, the judge noted there was no suggestion in the evidence of any abandonment, and there were five meetings between the conspirators between 13 March and 27 March 2009. Although the conversations at these meetings had not been recorded, the fact that the meetings occurred gave support to the inference that the agreement discussed in the intercepted telephone conversations had not come to an end. Moreover, it seems that counsel for the appellant on the plea took no issue with the suggestion that the conspiracy remained on foot, given the finding by police at different properties of various items used in the cultivation of cannabis.
45 The appellant also complained that the sentencing judge failed properly to assess the appellant's criminality in light of the degree to which the conspiracy had been acted on. In my opinion, there is no substance in this complaint. The prosecution submitted that this was not a 'low level' conspiracy (and maintained that submission in this Court). It is obvious that the sentencing judge was well aware of the overt acts of the conspiracy and specifically referred to them. Having given consideration to the relative seriousness of the conspiracy, his Honour rejected the suggestion that it was a low level example of this offence. This finding was, in my view, open.
46 Finally, under the umbrella of ground 1, the appellant submitted that, by reference to a small number of cases, the judge failed to have regard to the appropriate range as determined by current sentencing practices. This submission can be disposed of shortly. The judge was aware of the sentence passed on the co-offender, and had to give it due regard.[19] Moreover, the judge acquainted himself with current sentencing practices by recourse to a range of material. He observed correctly that the sentence he was required to pass needed to represent his own instinctive synthesis of all relevant factors. I detect no error either in the sentencing judge's approach, or in the actual sentence imposed. My distinct impression is that there is nothing at all unusual in sentences approximating two to three years' imprisonment for the offence of conspiracy to cultivate.[20] Further, the sentence adequately reflects the aggravating and mitigating features of the offence. In my opinion it cannot realistically be contended that the sentence of 27 months' imprisonment on charge 1 was outside the available range.
47 No part of ground 1 can be upheld. Leave to appeal on this ground should be refused.
48 Ground 2 asserts that the sentence on charge 1, conspiracy to traffick, 'offended against the principle of parity in relation to the co-accused McHardy'; ground 3 claims that the sentence on charge 2, trafficking methylamphetamine, is manifestly excessive; and ground 4 alleges that the sentence on charge 2 'offended against the principle of parity in relation to the co-accused McMillan'.
49 On the plea, the appellant's counsel submitted that the conspiracy, charge 1, was at the low end of the range of seriousness of that type of offence; and that the trafficking, charge 2, was also at the low end of the range.
50 Further, with respect to charge 1, counsel submitted that the essential difference between the appellant and McHardy (they being almost exactly the same age),[21] is that McHardy has a significant prior conviction for cultivation, and one minor conviction for cultivation. Whilst McHardy entered a comparatively early plea of guilty, counsel argued that the course of the appellant's case was far more complicated than that of McHardy. Thus, so it was put, it would be wrong to say that remorse does not apply equally for the appellant as for Mr McHardy, despite the appellant's plea being entered somewhat later.
51 On the other hand, the prosecution submitted all the offences committed by the appellant were serious examples of serious offences. As to the conspiracy, charge 1, while McHardy had a significant prior conviction for cultivation of cannabis (which the appellant did not have), the appellant was the financier, and was very much directing the operation. The appellant was the driving force in this offending. Charge 2, it was submitted, was the most serious of the offending. Cumulation should be ordered between the sentence imposed on charge 2 and the other sentences. The prosecution argued that the appellant's personal circumstances were very different from those of his co-offenders. The co-offenders had differing roles and levels of involvement in the offending. While McHardy had a very significant prior conviction for cultivation in a commercial quantity, McMillan had no prior matters at all.[22] McHardy, it was submitted, was the more minor player in the conspiracy. And while McMillan was dealt with for a more serious charge, he pleaded guilty early, had no criminal history, gave an undertaking to give evidence, and was remorseful. The prosecution argued that the trafficking in charge 2 was not low level offending, since the quantity of drugs was at the high end of non-commercial quantity, and the appellant had a direct relationship with the 'cook'. Further, there was no suggestion the appellant had anybody above him in any hierarchy.
52 It is plain that the judge paid regard to all relevant considerations bearing on parity. His analysis cannot be faulted. Hence, when sentencing the appellant, he said:[23]
The principle of parity of sentence is an important consideration whenever a Court sentences two or more co-offenders. It is inherently unjust to discriminate in the sentences imposed upon equally culpable and equally positioned co-offenders. A court must strive to avoid any unjustifiable disparity or sense of grievance flowing from disparity of sentence. However very often there is a range of differences between offenders in terms of personal circumstances, role or the presence or otherwise of mitigatory matters. The fact is that very seldom are offenders equally positioned. That is obviously the position here. The prosecution placed before me a chart (exhibit B) marking out the various sentencing findings made by two other judges. I have of course read the full sentencing remarks of each Judge. The sentences imposed in those cases were as a result of that particular judge's intuitive synthesis in that other case. Your personal circumstances are very different. You have matters in mitigation that they did not have. They had matters in mitigation not applicable to your case, for instance the presence of remorse and an early plea. There are differing roles or levels of involvement. Mr McHardy clearly had a very significant prior appearance for cultivation in a commercial quantity. You do not. McMillan had no prior matters at all. It is clear to me and I am satisfied beyond reasonable doubt of this having examined the recorded conversations that McHardy was the more minor player in the conspiracy. He had come out of prison. It was you who acted as the financier or backer for the proposed cultivation in a house in the Mildura region that you intended to fund. You had significant funds available to you so financial need is not pleaded on your behalf. My point is that very seldom are their [sic.] like offenders. I must not lose sight of the many differences between the various players including in McMillan's case the fact that he was dealt with for a more serious crime (commercial quantity by manufacture) but one who pleaded early, had no criminal history, gave an undertaking to give evidence and was remorseful. At the end of the day, of course I do have regard to the sentences passed upon McHardy and McMillan and the proper application of the principle of parity of sentence. I must reach my own conclusions as to your role, the mitigatory matters in your case and the appropriate sentence to pass upon you.
53 On the conspiracy charge, McHardy was sentenced to be imprisoned for three (3) years, upon which a non-parole period of 20 months was fixed. The appellant received a sentence of 27 months' imprisonment on this charge, that is, nine months less than the head sentence imposed on McHardy. Although McHardy had a very serious prior conviction for cultivating a commercial quantity of cannabis, having analysed the evidence, the judge was satisfied beyond reasonable doubt that the appellant's role in the conspiracy was the more serious. In my opinion, that finding was open. Moreover, as I have said, it is plain that the judge had regard to the appropriate principles.[24] I am unpersuaded that the judge made any error in his findings as to the appellant's role, or that in any fashion the judge's sentence on charge 1 offended the principle of parity. To the contrary, the judge balanced all relevant factors, including the appellant's greater role in the offending and McHardy's significant prior offence, and arrived at a sentence which properly reflected those factors.
55 It is convenient to consider grounds 3 and 4 together. On charge 2, trafficking methylamphetamine, the appellant was sentenced to three (3) years and eight (8) months' imprisonment. With respect to associated offending, McMillan pleaded guilty to trafficking in not less than a commercial quantity of methylamphetamine[25] and dealing in the proceeds of crime, and received a total effective sentence of two (2) years and eight (8) months' imprisonment. The appellant's counsel argued that his sentence on charge 2 'should have been half of what McMillan got'. Although it is true that McMillan pleaded guilty to an offence carrying a greater maximum penalty, he had no prior convictions at all, had pleaded guilty early, had given valuable assistance to authorities and had given a sworn undertaking to give evidence for the prosecution in criminal proceedings against the appellant. The mitigating circumstances in McMillan's case were far more powerful than those of the appellant, and, in my opinion, justified a considerably more lenient sentence than in the case of the appellant (even though the statutory maxima were different). It seems plain enough that the appellant supplied glassware, hardware and chemicals and McMillan was the 'cook' in the scheme for trafficking methylamphetamine.
56 Charge 2 also involved the appellant's possession of not insignificant quantities of drugs found in a clandestine laboratory at McMillan's residence and at premises related to the appellant, including the following:
• 568 grams of mixture containing water and methylamphetamine at a purity of 14 per cent - equivalent to 79.5 grams of pure drug - was found at McMillan's residence. (Although a commercial quantity of a mixture containing methylamphetamine is 500 grams, there was no evidence that the appellant was aware or intended that there was a commercial quantity at McMillan's house. The prosecution contended, however, that the quantity placed the offending at the high end of trafficking simpliciter.)
• 1.5 grams of methylamphetamine was found in the appellant's residence at Kangaroo Flat, together with the hardware and other items earlier referred to.
• 16.53 grams of methylamphetamine was found at a storage unit in Harcourt, together with documents, substances and equipment used in the manufacture of methylamphetamine and other drugs.
• 10.4 grams of methylamphetamine was found in a room in Clydesdale (Yandoit), together with electronic pocket scale.
57 I am not persuaded that the judge imposed a sentence on charge 2 which failed adequately to reflect the principle of parity. In my view the judge passed a sentence on the appellant which reflected the different roles of the co-offenders, and the markedly more significant mitigating features attending McMillan's case.
58 Moreover, I am not persuaded that the individual sentence on charge 2 is remarkable. Sentences of imprisonment that hover at three to four years are not at all unusual for trafficking in methylamphetamine, depending, of course, on the individual features of the particular case.[26] Having regard to the appellant's role in the offending constituting charge 2, I cannot see that the sentence is outside the range of those open in the correct exercise of discretion.
60 Grounds 5, 6, 7 and 8, relate to the sentences on charges 3, 4, 5 and 6. Each of those charges were trafficking based on possession for sale. Counsel for the appellant contended that the individual sentences on those charges were manifestly excessive, having regard to the fact that no actual sales were involved, and having regard to the relatively modest amounts detected. In the main, the substances to which the charges related were 'mixed', rather than pure, quantities of the relevant drug of dependence. The prosecution summary recorded that the amount of ecstasy in charge 3 was 44.5 grams (a traffickable quantity in a mixture[27] being 3 grams); the cocaine in charge 4, 3.2 grams (a traffickable quantity in a mixture being 3 grams); the MDA in charge 5, 8.7 grams (a traffickable quantity in a mixture being 3 grams); and the LSD in charge 6, 653 milligrams (a traffickable quantity in a mixture being 150 milligrams). Counsel put some emphasis on the fact that the pure quantities of the drugs were less than less than the total quantities in each case. Moreover, counsel submitted that, given the nature of the trafficking alleged, and the amounts involved, the degree of cumulation ordered on these charges was excessive. These submissions should be rejected.
61 In my opinion, the sentence on charge 4, although stern, is within the range of sentences properly open in the sound exercise of discretion. The amount of drug was many times the traffickable amount, and was possessed by the appellant for the express purpose of selling it. Its possession for sale, given that it was a distinctive drug in the appellant's cornucopia, deserved separate recognition in the sentencing process. When giving it separate recognition, however, the judge was required to pay due regard to the overall offending, and ensure that the principle of totality was not infringed. He achieved that objective by fixing an appropriate sentence on the individual charge, whilst providing that all but six months of the sentence be concurrent on the base sentence. Similar observations may be made of the individual sentences on charge 4 (cocaine), charge 5 (MDA) and charge 6 (LSD); although it should be noted that the whole of the sentences on charges 4 and 6 were left concurrent with the base sentence, and only four months of the sentence on 5 was ordered to be served cumulatively. Indeed, as between the four charges of trafficking, charges 3, 4, 5 and 6, the total cumulation on the base sentence was a mere 10 months.
62 Grounds 9 and 10 relate to the sentences on charges 7 and 8. It is claimed that the individual sentences on each charge, and the order for cumulation on charge 7, are manifestly excessive. I would reject these grounds. The appellant's possession of substances and equipment for the purposes of trafficking (charge 7), and possession of precursor chemicals, required separate recognition in the sentencing process. Although the sentence on charge 7 might be stern, the same cannot be said of the sentence on charge 8. Neither sentence individually is manifestly excessive, nor is the amount of cumulation excessive. The sentence on charge 8 is to be served concurrently with other sentences, and only 10 months of the sentence on charge 7 was ordered to be served cumulatively on the base sentence.
63 As I have said, the sentence on charge 2, three (3) years and eight (8) months' imprisonment, was ordered to be the base sentence. The judge ordered 12 months of the sentence on the conspiracy charge, charge 1; 10 months of the sentences on the trafficking charges, charges 3 to 6; and 10 months of the sentences on the charges on possession of equipment and chemicals, charges 7 and 8; were to be served cumulatively with the each other and with the base sentence, thus producing a total effective sentence of six (6) years and four (4) months' imprisonment. Standing back, and looking at the totality of the appellant's offending, in my view the total effective sentence is not outside the range of sentences properly open. Further, the non-parole period of three (3) years and 10 months, representing a shade over sixty per cent of the length of the head sentence, cannot legitimately be described as excessive.
64 Grounds 5, 6, 7, 8, 9, 10 and 11 must be rejected.
65 None of the grounds can be upheld. Leave to appeal should be refused on ground 1, and the appeal be dismissed.
[1] Crimes Act 1958, s 321 and Drugs, Poisons and Controlled Substances Act 1981, s 72B. The maximum penalty is 15 years' imprisonment.
[2] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC. The maximum penalty is 15 years' imprisonment.
[7] Drugs, Poisons and Controlled Substances Act 1981, s 71A. The maximum penalty is 10 years' imprisonment.
[8] Drugs, Poisons and Controlled Substances Act 1981, s 71D. The maximum penalty is five years' imprisonment.
[18] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
[20] Reilly v The Queen [2010] VSCA 278; Bennett v The Queen [2010] VSCA 280; Waters v The Queen [2011] VSCA 415; Waters v The Queen [2013] VSCA 86.
[21] The appellant was born 1 September 1963, and will soon be 51 years of age.
[22] The appellant had some relatively old prior convictions for possessing cannabis, and for firearms and social security offences.
[23] Underlining in original; emphasis added.
[24] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472-3 [28] (French CJ, Crennan and Keiffel JJ).
[25] Drugs, Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is 25 years' imprisonment.
[26] Vozlic v The Queen [2013] VSCA 113; Grech v The Queen [2013] VSCA 117; Zerafa v The Queen [2013] VSCA 42; Hearnden v The Queen [2011] VSCA 369.
[27] The traffickable quantities of drugs of dependence are set out in the Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3.
McNaughton
The Queen [2014] VSCA 174
(2007) 16 VR 269
(2001) 207 CLR 584
(1997) 189 CLR 295
(2011) 244 CLR 462