Mustica v The Queen; DPP v Mustica [2011] VSCA 79

1 Steven Mustica was found guilty after trial in the County Court on counts of trafficking in not less than a large commercial quantity of methylamphetamine (count 1) and trafficking in not less than a large commercial quantity of MDMA[1] (count 2). He pleaded guilty (before trial) to trafficking cannabis (count 3) and (after trial) to dealing with the proceeds of crime (count 4).

2 The maximum penalty on counts 1 and 2 is life imprisonment and a fine not exceeding 5,000 penalty units. The maximum penalty on counts 3 and 4 is 15 years' imprisonment.

3 On 16 December 2009 the applicant was sentenced as follows:

The judge cumulated 2 years of the sentence on count 2 and 1 year on the sentence on count 3 on each other and on the sentence on count 1. The total effective sentence was thus 15 years' imprisonment. The judge fixed a non-parole period of 11 years. He made a declaration with respect to pre-sentence detention, and other consequential orders.

4 The applicant was sentenced on counts 2 and 3 as a serious drugs offender. In consequence, there was a presumption of cumulation of those sentences.

5 Now Mustica ('the applicant') seeks leave to appeal against his conviction on counts 1 and 2; and if this application/appeal fails, then against the sentences imposed on those counts. He also seeks leave to appeal against the sentence imposed on count 3, and the orders for cumulation. The Director of Public Prosecutions cross-appeals against the sentence imposed on all four counts, and against the orders for cumulation.

6 I consider, for the reasons which follow, that the application for leave to appeal against conviction on counts 1 and 2 should be granted, the appeal allowed, and the applicant re-sentenced pursuant to the power conferred upon the court by s 569(2) of the Crimes Act 1958. I further consider that applicant should be re-sentenced on counts 3 and 4. This will necessitate his application for leave to appeal against sentence being granted and his appeal allowed. The Director's appeal, in the circumstances, should be dismissed.

7 In order to understand, particularly, ground 2 on the conviction application, I should set out counts 1 and 2 on the presentment. Thus:

Count 1: The Director of Public Prosecutions presents that STEVEN PETER MUSTICA at MELBOURNE and various other place in the said State between the 10th day of March 2006 and the 28th day of July 2006 trafficked in a drug of dependence namely Methylamphetamine in a quantity that was not less than a large commercial quantity applicable to that drug of dependence.

Count 2: AND the Director of Public Prosecutions further presents that STEVEN PETER MUSTICA at MELBOURNE and various other place in the said State between the 22nd day of March 2006 and the 28th day of July 2006 trafficked in a drug of dependence namely 3,4-methylenedioxy-N-methylamphetamine (MDMA) in a quantity that was not less than a large commercial quantity applicable to that drug of dependence.

8 Between March and July 2006 the police conducted an investigation code-named Operation Kearns. It related to suspected drug trafficking. Initially, the main suspect was Ismayel Ramadan. On 10 March 2006, Ramadan met an undercover policeman, to whom he trafficked a quantity of methylamphetamine and provided other drug samples. Ramadan held himself out to be someone involved in large scale drug trafficking, able to supply large quantities of a wide range of drugs.

9 A telephone intercept was then placed on Ramadan's mobile phone. Intercepted calls disclosed that Ramadan was engaging in persistent drug trafficking with numerous associates, most extensively the applicant.

10 From 11 May, an intercept was placed, first on one, then on multiple telephones used by the applicant. Interceptions revealed that, in addition to his dealings with Ramadan, the applicant was involved in drug trafficking with a number of other criminal associates.

11 The applicant was arrested, interviewed and charged on 28 July 2006. A search warrant was executed at his home that day. Various items of equipment were found which gave rise to count 4.

12 Operation Kearns accumulated some 20,000 telephone intercepts involving the applicant. The Crown relied upon about 2,500 of those intercepts to prove counts 1 and 2 on the presentment.

13 Apart from reliance upon telephone intercepts, the Crown adduced at trial evidence of trafficking by the applicant to undercover policemen. The fact of that trafficking, and of the quantities trafficked, were not in dispute.[2] The Crown also adduced evidence from a man named Neri as to instances of trafficking by the applicant to him. The applicant challenged the reliability of Neri's evidence. Another policeman gave evidence of a 'drug dictionary', its purpose being to enable the jury to understand what was being said in allegedly drug-related conversations.

14 The Crown contended that the evidence showed that the applicant had trafficked about three kilograms of methylamphetamine. The prosecutor, however, produced in the course of her closing address a document entitled 'chart of alleged transactions' which identified 153 alleged acts of trafficking in amounts which accumulated to about 2.7 kilograms of the drug.[3] This was said by the prosecutor to be a conservative view of things.

15 On the footing that the jury's verdict of guilty on count 1 involved its acceptance that the applicant had trafficked (only) 2.7 kilograms of methylamphetamine, it was conceded by his counsel on the plea that the value of the drugs, trafficked at the wholesale level, was approximately $500,000 - the street value being approximately twice that amount.

16 The Crown case, with respect to trafficking MDMA, was that the applicant had trafficked approximately 1.3 kilograms of the drug, in the form of at least 6,500 tablets. The value of those tablets, at the wholesale level at which the applicant sold them, was approximately $98,000. The minimum street value of the tablets, on the evidence, was about $230,000.

17 The applicant pleaded not guilty to counts 1 and 2. But he pleaded guilty - the Crown not accepting his pleas - to trafficking simpliciter. Further, in the absence of the jury his counsel indicated his willingness to plead guilty to counts of trafficking not less than a commercial quantity in each instance.

18 It was not in dispute in this Court that the judge correctly charged the jury that proof of each of counts 1 and 2 depended upon the Crown establishing, inter alia, that the applicant intentionally trafficked in not less than a large commercial quantity of the particular drug; and that this required proof: (a) that the applicant trafficked in not less than a specified quantity; (b) that the applicant intended to traffick in not less than that quantity. It will be necessary to say more about the charge in the latter connection a little later; but now it is convenient to identify the grounds of appeal.

Ground 1: The learned judge erred in his directions on the elements of trafficking in a large commercial quantity of a drug of dependence; and in particular he erred:

• (a) in directing that the requisite intention or mens rea would be established if the applicant 'knew at some stage that he was getting beyond, and got beyond, [the applicable large commercial quantity]' or if 'he knew that that was the quantity in which he was now trafficking, once he got to that stage, and he continued' or if 'he just went ahead knowing that there was a significant or real chance that his activity amounted to trafficking in a large commercial quantity, but went ahead anyway' or if he 'was aware of the likelihood that he was trafficking in not less than a large commercial quantity - so it would be at some stage later in the piece ...'; and
• (b) in failing instead to direct that the actus reus and the mens rea must be contemporaneous and in particular that the prosecution must prove beyond reasonable doubt that the applicant intended from the outset that, in the course of his trafficking business and within the period covered by the presentment, he would traffick in amounts that in total would exceed the applicable large commercial quantity for each count.

Ground 2: The verdicts of guilty on Counts 1 and 2 are unreasonable or against the weight of the evidence; and in particular it was not open in the evidence to be satisfied beyond reasonable doubt in respect of either count:

• (a) that the amount trafficked exceeded the applicable large commercial quantity; or
• (b) that the applicant had the intention, from the outset and throughout the duration of the period of trafficking alleged, to traffick in an amount that in total would exceed the applicable large commercial quantity.

19 Counsel for the applicant rightly accepted that the main focus at trial had been upon the question whether the Crown had established trafficking in the minimum quantities necessary to establish the offences. But, he submitted, intention had been left as a matter which the Crown must prove; and the judge, in those circumstances, had addressed it.

20 Counsel then submitted that it was decided in R v McCulloch[4] that to establish the offences comprehended by counts 1 and 2 in a Giretti[5] setting it is necessary for the Crown to prove that the relevant intention - that is, to traffick in not less than a large commercial quantity of the particular drug - was held throughout from the time when the course of trafficking began. But here the judge had instructed the jury that it was sufficient if the intention was formed at some stage in the course of trafficking.

21 Counsel drew attention in the following passages in the judge's charge:

The prosecution must prove that the accused trafficked in the relevant quantity of the relevant drug. In Count 1 it is 2.5 kilograms, and they must also prove that he intended to traffick in not less than the relevant quantity. Both parts of that third element are in issue in this case. You need to be satisfied of both of those matters. Even if you were satisfied, on the basis of the evidence, that there was more than 2.5 kilograms of methylamphetamine trafficked by Mr Mustica, you would then have to consider whether you were satisfied beyond reasonable doubt that he intended to traffick more than 2.5 kilograms of methylamphetamine, and the same applies to the second count. It is the fact of the relevant quantity having been trafficked, together with the intention to traffick in that quantity that, together, make up element three.

... intention means deliberately, effectively. They must prove that Mr Mustica deliberately trafficked in more than 2.5 kilograms.

This is an example of where there is no direct evidence of what his intention was ... the Crown relies on you drawing an inference that he did have the intention to traffick in not less than a large commercial quantity ...

You will remember what I have told you already about inferences, I am not going to repeat that. You may be able to draw the inference of intention, if you found beyond reasonable doubt that the accused knew or believed that he was trafficking in an amount that was not less than a large commercial quantity. In other words, if you found beyond reasonable doubt that he knew at some stage that he was getting beyond, and got beyond, 2.5 kilograms, if you inferred that from the evidence, that he did know that, then that element would be proven.

However, you do not have to find that the accused actually knew that he was trafficking in not less than a large commercial quantity in order to draw this inference. Proof that the accused was aware that there was a significant or real chance that his trafficking activity involved not less than a large commercial quantity is also capable of sustaining the inference that he intended to traffick in not less than such a quantity. I will repeat that. It sort of cascades down again.

You have to be satisfied would he intentionally traffick in 2.5 kilograms or more. You could only do that, because there is no direct evidence about that, by drawing an inference that he knew, or that he intended, that it was deliberate. You could draw an inference that it was intentional if you were satisfied that he knew or was aware. For example, if there was some evidence that led you to conclude that the only inference was that he knew that that was the quantity in which he was now trafficking, once he got to that stage, and he continued, then you could draw the inference that he intended to traffick in excess of a large commercial quantity, or not less than a large commercial quantity.

Beyond that is a concept called recklessness. If you were satisfied that he was aware that it was likely, with all this activity, that he was trafficking - that there was a significant or real chance that he was trafficking in a large commercial quantity, then that would be sufficient to justify you inferring that he had such an intention. If he just went ahead, knowing that there was a significant or real chance that his activity amounted to trafficking in a large commercial quantity, but went ahead anyway, that would be sufficient to draw the inference that he intended to traffick in not less than a large commercial quantity. Again, if you need some further instructions about that in due course I can provide them.

That is, if you found, and this of course would be beyond reasonable doubt, on the evidence, that Mr Mustica was aware of the likelihood that he was trafficking in not less than a large commercial quantity - so it would be at some stage later in the piece - you may draw the inference that he had the intention to traffick in that quantity. That is, you may infer that, because the accused was aware that there was a significant and real chance that his conduct involved in trafficking in not less than a large commercial quantity, he must have intended to traffick in that quantity.

22 Pressed as to how it could be that the convictions in McCulloch were sustained by this Court in light of what he asserted was the principle for which the case stood, counsel responded that there it had been assumed on the applicant's trial that his alleged co-offender has trafficked a commercial quantity of a particular drug, and that he had done so with relevant intent. McCulloch's defence had been that he was not complicit in the other man's offending. In those circumstances, the Court had been able to say that the trial judge's direction had been unexceptional.

23 Counsel finally submitted that the misdirection, concerning as it did an element of the offence, was such that the Crown could not successfully rely upon the proviso to s 568(1) of the Crimes Act 1958.

24 It was contended for the Crown, in response, that: (1) there was no error in the judge's direction concerning intention, and no substantial miscarriage of justice because the directions needed to be considered in the context of what was the live issue at trial - which was the quantities of methylamphetamine and MDMA trafficked; (2) the Crown's case as to intention was that, from the outset, the applicant was a prolific trafficker, from which it should be inferred that he deliberately trafficked not less than a large commercial quantity of each of the two drugs; (3) there had been no relevant exception to the judge's charge; (4) what was said by this Court in McCulloch needed to be understood in the context of that case; (5) there, the judge's directions had in the end been upheld; (6) it was enough if intention was formed at the stage at which the applicant, if he trafficked any further quantity of drug, would cross the large commercial quantity threshold; (7) if there was a misdirection, the proviso to s 568(1) of the Crimes Act could be applied.

25 In my opinion, for the reasons which follow, ground 1 should be upheld.

26 First, contrary to the contention for the Crown, the Crown's obligation to establish the applicant's intention to traffick not less than a large commercial quantity of methylamphetamine and MDMA was in issue. That is so despite the case being fought on proof of quantities. The judge ascertained the situation in an exchange with defence counsel before addresses. No doubt for tactical reasons, applicant's counsel did not raise the issue in his final address. But his Honour understood that he needed to address it, and he did. He also told the jury, when summarising the closing arguments of applicant's counsel, that it was the defence case that -

not only did he not actually traffic, but you could not be satisfied on each count that he intended to traffic, in a large commercial quantity.

27 Second, it is the fact that applicant's counsel at trial did not take relevant exception to the judge's direction concerning intention. But that is no answer to the attack now pursued in the event that the direction, concerning an element of the offence, was erroneous. It could not be sensibly postulated, I add, even if it could be decisive, that the failure to take relevant exception was a simply tactical decision.

28 Third, I am satisfied that the direction was erroneous. I consider that it is clear, in the italicised passages in his charge cited at [21] above, that the judge told the jury that intention to traffick not less than a large commercial quantity of each of methylamphetamine and MDMA could be inferred if 'at some stage ' in the course of his trafficking business the applicant formed that intention. His Honour's reference to 'at some stage' was further qualified by his reference, in substance, to the stage at which the applicant reached the large commercial quantity threshold and continued trafficking.

29 Those directions were, in my opinion, both wrong in principle and contrary to what this Court stated in McCulloch. Although, because of the way in which McCulloch was decided, the Court's comments as to intention in that case should be characterised as obiter, it does not matter.

30 The essence of a Giretti count, in the context of drug trafficking, is that between specified dates the accused trafficked a drug by undertaking what has been called a relatively continuous trade, business or dealing in the drug, this not requiring any formal business structure or organisation. There can be no finding of guilt on a Giretti count unless the jury so finds. It may infer that the accused was carrying on such a business even though it is unable to unanimously conclude that an individual dealing relied upon by the Crown was either engaged in at all, or else was a dealing in the course of the trafficking business. It is also open to a jury to conclude that such a business was being carried on if it finds that, for a significant part of the within dates period, the accused was so acting.

31 The actus reus of a Giretti count of trafficking is thus constituted by the dealings which the jury finds were done in the course of a business engaged in by the accused.

32 It was held in McCulloch that the offence of trafficking in a commercial quantity of a drug could be proved, in a Giretti count, by reliance upon an accumulation of the quantities involved in multiple dealings in the course of the accused's business, none of which, considered discretely, was a dealing in a commercial quantity. The Court rejected an argument that a 'sufficient' number of the dealings in the course of the business had to involve a commercial quantity, for if it was otherwise all that would be revealed was a business of trafficking simpliciter.[6]

33 I have described the actus reus of a Giretti count of trafficking. It is beside the point that the accused might be presented, in the alternative, on individual counts arising out of dealings which form part of the business.[7]

34 In principle, in my opinion, the relevant intention must be present throughout the actus reus. It is the essence of criminal offending that the act is accompanied by the relevant intention. Proof of intention held from the outset of the actus reus, in a case such as the present, might be inferred from later-occurring events. But there is a difference between an inference of that kind and an inference that, some time in the series of events constituting the actus reus, the accused formed the relevant intent, viewed prospectively.

35 Principle coincides with what this Court said in McCulloch. There the applicant relied, inter alia, upon the following grounds:

Ground 1: The verdict on each count is unsafe, unsatisfactory, uncertain or otherwise productive of a miscarriage of justice given the following factors:

...

(c) none of the separate transactions alleged involved the requisite intention to traffic in the applicable commercial quantity of the drug in question;

Ground 2: The learned judge erred in his directions on the elements of trafficking in a commercial quantity of a drug of dependence; and in particular he erred in failing to direct that the actus reus and the mens rea must be contemporaneous, which, in the present context, meant that, from the first transaction to the last for a continuous period, the applicant had to intend, know or believe that the total of the transactions would exceed the applicable commercial quantity for each count.

36 When describing the matters requiring proof on a Giretti count of trafficking in a commercial quantity of a drug, the Court said that -

There is force in the Crown's submission that, in the context of a single criminal enterprise, the ability to aggregate a number of separate transactions so as to support the offence of trafficking in a commercial quantity is consistent with the legislative policy underlying the relevant statutory provision to punish more severely those who engage in commercial drug trafficking. What is important is the nature of the business being conducted. It must involve the intentional trafficking, whether in single transactions or cumulatively, in amounts or an amount exceeding the designated quantity of the prohibited substances within the defined period. Accordingly, before a person can be convicted of trafficking in a commercial quantity on this basis, the individual must be found to have possessed the intention to traffick in at least the designated amount contemporaneously with his or her engagement in the conduct said to constitute the actus reus.[8]

37 It is true that the reference to intention was made in the context of rejecting the applicant's argument that it was impermissible to aggregate small quantity dealings in a Giretti count; but it bore upon two aspects of the grounds of appeal which addressed intention.

38 The Court returned to the question of intention. It said this:

It must be borne in mind that the Crown contended at the trial that the applicant was not only an active participant throughout the entire operation, which involved the trafficking in substantial quantities of drugs but, effectively, the organiser of it. A jury was entitled to infer that the applicant intended from the outset that, in the course of his business and within the period covered by the presentment, he would traffick in amounts that in total would exceed the designated amount for each of the drugs concerned. On the authority of Nguyen, it was sufficient to establish the requisite intent if the applicant believed it was likely - that is, a real chance - that the quantity trafficked would exceed these amounts. [9]

There was no dispute concerning the character of the dealing involved in this case. Critically, no issue was raised by the defence about the applicant's state of knowledge or belief, or as to whether or not he intended throughout to traffick in a commercial quantity. The applicant simply argued that he had been 'stitched up' or 'framed'. Counsel for the Crown accepted in argument that, if the applicant's contention that the intention to traffick in a commercial quantity in a Giretti sense had to be present from the outset of the period alleged, the judge's charge was inadequate as this was not made clear. However, we do not agree. Having regard to the real issues as they were defined in the applicant's trial, the judge's instructions were clearly adequate and appropriate.[10]

40 In the passage last cited, the Court identified the real point at issue in the case before it, and was able to say, in the circumstances, that the judge's charge had been adequate. That was so although the judge had not given a direction that relevant intention must be present throughout.

41 I accept that what was said in McCulloch about intention was strictly obiter. But, as I said earlier, it coincides with principle. It also coincides with what this Court said about intention in DPP Reference No.1 of 2004; R v Nguyen,[11] an authority cited in McCulloch and applied, inter alia, in R v Bui,[12] R v Garlick (No. 2),[13] and R v Page.[14]

42 In DPP Reference No. 1, the Court defined the intention which must be proved:

In short, offences of the kind created by ss 71 and 71AA are defined by quantities. It is therefore implicit in the offences created by ss 71 and 71AA that the accused must be shown to have had the intent to traffick in a prohibited substance and in a particular quantity. It follows that it is necessary for the Crown to show that the accused had knowledge of the nature of the substance and of the quantity of the substance at the time of the commission of the offence.[15]

43 With respect to intention to traffick drugs, and to do so in a [large] commercial quantity, the Court said this:

While ss 71 and 71AA require proof of an intention to commit the physical act of trafficking which is charged, and knowledge of the nature and quantity of the substance the subject of trafficking, belief falling short of actual knowledge of the facts should be capable of sustaining an inference of intention; as too should proof that the act in question is done in circumstances which make it appear beyond reasonable doubt that the accused is aware of the likelihood of the facts (in the sense of being aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug).[16]

(1) In order to prove the commission of an offence under s 71AA of the Act, the Crown must prove beyond reasonable doubt that the accused intended to commit the act of trafficking which is alleged and hence that the accused knew or believed that it was, or was likely, that the subject of the act of trafficking was prohibited drugs and that the amount in question was not less than a commercial quantity.

(2) Absent relevant admissions, the question of intention must ordinarily be determined by the jury as a matter of inference from proof that the accused did the physical act of trafficking which is alleged and proof of the circumstances in which it was done.

(3) It is a question of fact to be decided by the jury as part of that process as to whether the circumstances are sufficient to establish the requisite knowledge or belief.

(4) The judge should identify for the jury any evidence of facts and circumstances capable of sustaining the inference and, ordinarily, but subject always to the facts of the particular case, the judge may direct the jury that proof beyond reasonable doubt that the accused believed that there was a significant or real chance that the subject of the act of trafficking was prohibited drugs and that the amount in question was not less than a commercial quantity, is capable of sustaining the inference.

(5) The judge should further direct the jury, however, that it is in the end a matter for them whether the inference of intention is properly to be drawn and that they should not draw an inference of intention unless satisfied that it is the only inference reasonably open.[17]

45 The Court's reference at [10] in its reasons to proof of 'knowledge of the nature of the substance and the quantity of the substance at the time of the commission of the offence'[18] underlines the need for full contemporaneity between the actus reus and the relevant intention.

46 The formulation of intention in DPP Reference No.1 was in the context of a single transaction. Most of the cases in which intention has been discussed have been of that kind - whether the offence be importation of a prohibited substance, or trafficking. R v Te[19] involved conviction on a Giretti count; but intention was not in issue. That was also the situation in R v Lao & Nguyen.[20] But it cannot be doubted that the same intention must be proved where a Giretti count is in question; and that, absent admission, intention is a matter of inference. So, in the case of a person indicted on a count under s 71 or s 71AA, intention might be inferred from the accused being shown to have had, from the outset of the trafficking business, knowledge of the nature of the drug and of the quantity which would be trafficked.[21] Alternatively, intention might be inferred if the Crown proved that the accused knew from the outset of the trafficking business that there was a significant or real chance that he or she would traffick quantities of the drug totalling not less than the threshold quantity.[22]

47 Error in the charge having been established, I reject the submission for the Crown that the proviso might be called in aid. The error addressed an element of the offence; an element, notwithstanding the back seat that it occupied at the trial, which was potentially of very real importance. The consequence, subject to consideration of ground 2 and the residual discretion, is that the convictions on counts 1 and 2 should be quashed, and the matters remitted for re-trial.

48 Counsel for the applicant submitted that the verdicts and convictions were unsafe or unsatisfactory, and so that there should be an acquittal on the two counts. He invited this Court, in that event, to substitute convictions of trafficking not less than a commercial quantity of the two drugs.[23] I took him also to submit that, even if ground 2 was not made out, the Court should - if it found ground 1 established - exercise its discretion not to remit, but instead substitute convictions for the lesser offences.

49 The task which the Crown must undertake when it is contended that a conviction was unsafe or unsatisfactory is set out in M v The Queen,[24] in passages cited in Nguyen v The Queen.[25] As I noted in Rodi v The Queen,[26] what was said in M v The Queen is compatible with the observations of Hayne J in Libke v The Queen.[27]

50 Counsel for the applicant submitted that the conviction on count 1 was unsafe or unsatisfactory because the jury must have had a reasonable doubt that his client had trafficked not less than 2.5 kilograms of methylamphetamine. He further submitted that his client's conviction on counts 1 and 2 was unsafe and unsatisfactory because the jury must have had a reasonable doubt that the Crown had proved relevant intention. In consequence, counsel submitted, acquittal should be entered on both counts, or at least on count 1.

51 In my opinion, the jury might well have entertained a reasonable doubt that the applicant had, in the course of a business, trafficked not less than 2.5 kilograms of methylamphetamine; and it might have declined to infer that he had intended from the outset to traffick in not less than large commercial quantities of that drug and MDMA. But I cannot conclude that it must have had a reasonable doubt of his guilt on either account.

52 I should say something more about the course of trafficking. With respect to count 1, a large commercial quantity of methylamphetamine was not less than 2.5 kilograms. As I have already indicated, the Crown relied upon many, many transactions over a four and a half month period in order to accumulate a total amount exceeding 2.5 kilograms. The individual transactions, on the Crown case, varied from half a gram to 84 grams. Many were less than 10 grams. Viewed from the applicant's standpoint, on a 'worst case' the amount trafficked was about 3 kilograms. But a summary of transactions relied upon by the Crown in final address identified 153 alleged transactions; and the total amount there alleged to have been trafficked, in 150 of them, was about 2.7 kilograms - that is, 200 grams beyond the threshold.

53 With respect to count 2, a large commercial quantity of MDMA was not less than one kilogram. The Crown case was that the applicant trafficked tablets on 21 occasions between 6 April and 24 July 2006.[28] The Crown alleged that a total of about 6500 tablets were trafficked on 18 of those occasions.[29] The individual transactions varied between 14 and 2000 tablets. Assigning an average weight to each tablet, the Crown alleged that the quantity proved to have been trafficked was about 1.3 kilograms - that is, about 300 grams above the threshold.

54 In the case of both counts 1 and 2, then, the Crown relied upon a multiplicity of acts done in a business of trafficking over an extended period, the individual quantities being quite small in many instances, and the totals allegedly trafficked not much exceeding the relevant thresholds.

55 I turn to the applicant's contention that the verdict on count 1 was unsafe or unsatisfactory because the jury must have had a reasonable doubt that the applicant had trafficked a large commercial quantity of methylamphetamine.

56 Applicant's counsel produced in this Court a 'chart regarding quantities of methylamphetamine trafficked'. It identified 41 out of the 150 alleged dealings set out in what I have called the prosecutor's summary provided to the jury in closing address. Counsel submitted that the transactions analysed in the chart revealed that in each instance the quantity relied upon by the Crown had been overstated. The alleged overstatements were in amounts varying between 1 gram and 84 grams. In the result, according to the chart, it had not been open to the jury to find that the applicant had trafficked more than 2023 grams of methylamphetamine. This conclusion was based on what was said to be a 'total amount alleged by Crown of 2.7 kgs'.

57 Counsel for the Crown submitted that the summary which the prosecutor had provided to the jury had been expressed to be conservative. The jury had been instructed that it was for it to determine, on all the evidence, whether it was satisfied that the applicant had trafficked a large commercial quantity of methylamphetamine. It had spent 12 sitting days deliberating. It had asked a question, after retiring, which showed how closely it was addressed quantification. The jury had been entitled to be satisfied, on all the evidence, that the applicant had trafficked not less than a commercial quantity of the drug.

58 In reply, counsel for the applicant submitted that the jury had not been entitled to go beyond the prosecution's document. That had been 'the Crown case'.

60 First, the contention for the applicant which focused upon the amount of methylamphetamine proved to have been trafficked was founded, in my view, upon a fallacy. Contrary to counsel's submission, 'the Crown case' at trial was not disclosed, and limited, by the summary which the prosecutor produced for the jury's consideration. In the course of her address, the prosecutor repeatedly stressed that the document was a conservative view of the evidence, and that it was for the jury to quantify the amount of drugs trafficked, on assessment of all the evidence. To the same import, she stated that the document was not the sum of all the transactions that were disclosed by the many intercepted telephone calls. For his part, trial counsel for the applicant submitted that the 'upper figure' of methylamphetamine trafficked, on the Crown case, was 'somewhere around the three kilo mark' and 'three kilos max'. It was in that context - not the context supplied by the prosecution document - that he submitted that the Crown could not 'afford much leakage'.

61 The fallacy just identified does not mean that the attempt by applicant's counsel in this Court to impugn the Crown's summary necessarily fails. But it does mean that the attempt has a different, and less favourable, starting point.

62 Second, the Crown case was, except for a number of controlled trades to undercover policemen, and except for the (disputed) evidence of the man Neri, circumstantial. It depended upon the jury drawing inferences as to what was meant by many, many telephone calls and text messages. The language used in those communications was a drug argot, concerning which a police witness gave a dictionary.

63 Not only was it necessary for the jury, if it accepted the reliability of the dictionary, to consider all the communications which constituted, as the Crown alleged, the trafficking in methylamphetamine, it was also necessary for it to consider the proved quantity of some transactions by reference to the price paid or agreed to be paid.

64 The jury's task, in the circumstances, was evidently a complicated one

involving close analysis of some 2500 telephone intercepts put in evidence.[30] Its long consideration of its verdicts shows, I think, the conscientious way in which it went about its task. It did so better informed than this Court, which was not asked by either side to listen to the 2500 intercepts. The jury had, in the event, a distinct advantage in its consideration of the import of the various conversations. As part of that advantage, it was better able than this Court to consider the likely import of a particular conversation - one amongst a number - between the applicant and a particular individual. That is, the jury was better equipped than this Court to decide whether to infer that a particular transaction was discrete, or else was a repetitious reference to a transaction already considered by it.

65 In the event, although the jury's task did not involve an evaluation of credit, it nonetheless enjoyed advantages with respect to fact finding which this Court should respect.

66 Third, I have studied the chart relied upon by the applicant, and have read the two volumes of telephone intercepts upon which the chart is based. I certainly allow that a jury might have had a reasonable doubt whether some alleged instances of trafficking were a 'double-up', or whether other instances were sufficiently proven. But I do not accept that the jury must, as distinct from might, have had a reasonable doubt that, any of those instances was a discrete drug dealing. So, even by reference to the conservative case set out in the Crown's summary, I consider that the jury verdict on count 1 is beyond successful attack.

67 Fourth, it is notable that trial counsel for the applicant (a) acknowledged (correctly, in my opinion) that the jury might take a starting point of about 3 kilograms - not 2.7 kilograms - in respect of the trafficking the subject of count 1; and (b) did not essay an analysis of the kind advanced in this Court. He contented himself with broad generalisations that the Crown had not proved that the threshold had been reached, and with a submission that Neri's evidence should be rejected out of hand. Presumably, his address took that form for tactical reasons. It does not preclude the applicant pursuing the detailed analysis presented in this Court and if some obvious fault was disclosed, this Court should acknowledge it. But that is not the situation here.

68 Although I reject the particular attack, it gives additional context, respecting count 1, to the framework in which intention had to be proved.

69 I turn to intention. The jury's verdict shows that it found intention established. But the verdict was rendered in the context that the judge's instruction respecting intention was erroneous. In consequence, if I had a doubt whether intention could be established to the criminal standard, the jury's verdict could hardly dispel that doubt.[31]

70 I am not persuaded, however, that on either count 1 or 2 the jury must have had a reasonable doubt that the Crown had proved relevant intention - that is, that the jury was precluded from drawing an inference of intention adverse to the applicant.

71 The jury's verdict shows that it must have concluded that the applicant had engaged in a business of drug trafficking in the between-dates periods identified in counts 1 and 2. If it had not so concluded, the factual basis for establishing the threshold quantities would have disappeared - because it depended upon an accumulation of dealings over those periods to edge past the relevant thresholds.

72 Then the question arises whether the only inference reasonably open - given that conclusion - was an inference that the applicant intended, from the outset of his trafficking business, to traffick a large commercial quantity of each drug. That inference might be founded upon a conclusion, inter alia, that the applicant believed from the outset that there was a significant or real chance that he would traffick in such quantities.

73 In my opinion, drawing an inference adverse to the applicant is more difficult in a case of the present kind than in the kinds of case which I instanced at footnotes 21 and 22. A jury would rightly be wary about drawing an adverse inference from the mere fact that, by an accumulation of small dealings over a longish period, the accused trafficked a large commercial quantity of a particular drug. The consequence of the jury drawing such an inference (not that it will know of it) is profound. The accused is thereby exposed to a maximum penalty of life imprisonment.

74 But, in a case of the kind under discussion, a jury would be entitled to consider, respecting proof of intention, matters such as the frequency of dealings from the outset, the size of individual dealings, the number of dealings and the period of time over which the dealings took place. That is, the jury would not be confined to consideration of the mere fact that the accumulation of dealings produced trafficking in not less than a particular quantity.

75 It is because the jury was entitled to bring to account matters of the kind which I mentioned in the preceding paragraph that I consider that the jury, assuming that it had been properly directed, was not obliged to return verdicts of not guilty.

76 The conclusion just expressed should not be understood to mean that it is desirable to frame Giretti counts in circumstances such as the present. Even if the Crown can hope to prove that the quantities involved in a large number of small transactions, when accumulated, cross the quantity threshold (though only just) there is a certain artificiality in the jury being invited to infer the presence of guilty intent - necessarily from the outset of the dealings. In such a case, it may be desirable - notwithstanding that the maximum penalty will be substantially less in each instance - to indict the offender on a number of counts of trafficking simpliciter, selecting the instances which involve larger quantities trafficked. It should not be supposed that the limitation imposed by totality would prevent the imposition of a total effective sentence which was appropriate to the circumstances. R v Towle,[32] in a different context, illustrates the point.

77 The attack under cover of ground 1 having succeeded, and under cover of ground 2 having failed, ordinarily the appeal against conviction should be allowed and there should be an order for a re-trial on counts 1 and 2. But counsel for the Crown specifically submitted that, 'should the convictions on counts 1 and 2 be quashed, the Director would consent to this Court substituting convictions for trafficking in commercial quantities of the drugs in Counts 1 and 2. Taking account of that submission, the invitation by applicant's counsel noted at [48], and the matters which I have mentioned at [72-[76], I consider that the Court should exercise its discretion not to order a re-trial, but rather substitute verdicts in exercise of its power under s 569(2) of the Crimes Act 1958.

The sentence application. The Director's appeal

78 Assuming (I will not keep repeating it) that the other members of the Court agree with the conclusions expressed in the preceding paragraph, the applicant effectively falls to be re-sentenced on all four counts. The sentences on counts 3 and 4 are put in question because the context in which he was sentenced on those counts will be different. That is, he is now to be sentenced on counts 1 and 2 for lesser offences - offences to which he was prepared to plead guilty at trial.

79 In re-sentencing the applicant (it is convenient to maintain that description of him) on counts 1 and 2, the factual essence of the situation is really unchanged. Even if it be accepted that the extent of the proved quantity of methylamphetamine trafficked was somewhat less than the amount alleged, the applicant was a persistent and active trafficker in both that drug and MDMA. He trafficked quantities of each drug which were - it is to be assumed - in the upper range of trafficking in a commercial quantity of each drug. He was not a drug user. He trafficked for profit, and his turnover in money terms was large - even if his business ineptitude meant that his trafficking was not the commercial success that he no doubt hoped that it would be.

80 The offences comprehended by counts 1 and 2, in the event, were undoubtedly very serious.

81 Count 3 was a count of trafficking cannabis between 22 March and 28 July 2006. Thus far I have said nothing about that offending, and I must shortly do so. The quantity trafficked was between 7 and 12.5 kilograms. It was constituted by offers to sell and actual sales. The value of the drugs trafficked was estimated at between $35,000 and $60,000. The applicant pleaded guilty to the offence on 24 April 2009. That was before the commencement of his trial on counts 1 and 2 on 18 June 2009.

82 I should also say something briefly about count 4. When the applicant's home was searched on 28 July 2006, police found a large variety of items which the applicant had acquired in the course of his drug trafficking business. The items included water pressure sprayers, chainsaws, computers, bedding, irons, a miscellany of other electrical equipment, and a quad bike.

83 In sentencing the applicant, the judge described the applicant's personal circumstances; and he identified a number of matters going in mitigation of penalty. I refer to, and need not repeat, what his Honour said at [41]-[56] in his sentencing remarks. I do highlight, however, the circumstances that the applicant - (1) was aged 52 at time of offending, was 56 at time of sentence, and is now 57; (2) was afflicted at time of sentence (and likely still is) by various health problems which were apt to make imprisonment unduly burdensome for him; (3) had only a very old past criminal history, and no convictions for drugs offences; (4) had not offended in the period of more some two and a half years between release on bail in late November 2006 and remand after conviction on 31 July 2009. I note also the extended period of delay between arrest and trial, and the Crown's concession in this Court that the applicant's willingness at trial to plead guilty to offences of trafficking commercial quantities of methylamphetamine and MDMA - in addition to his plea on count 3 - entitled him to some reduction in the sentences which would otherwise be appropriate.

84 In additional written submissions directed to re-sentencing, counsel for the Director submitted that

[A]ll things being equal, a case at the top end of trafficking in a commercial quantity of a drug of dependence would attract a sentence of similar magnitude to one at the lower end of offences of trafficking in a large commercial quantity.

85 In my opinion, there was force to that submission.

86 Counsel further submitted, correctly, that the applicant's conviction on count 2 would be the conviction of a 'serious drug offender' in respect of a 'drug offence'.[33] Accordingly, ss 6D and 6E of the Sentencing Act 1991 would apply. He did not submit, however, that s 6D (b) should be applied so as to lead to the imposition of a disproportionate sentence.

87 Whilst giving due weight to the matters running in mitigation, the applicant's offending - involving trafficking in commercial quantities of two drugs by dealings over a lengthy period, and trafficking in a third drug over that period - requires substantial punishment. All things considered (including the individual sentences passed on the co-offenders) I would re-sentence the applicant as follows:

88 In determining what orders should be made for cumulation, I have kept the question of totality in mind, and as well the sentences passed on the other offenders. I consider that there should be part concurrency (not total cumulation) of the sentence passed on count 2, and there should be cumulation of part of the sentence on count 3. I see no need to cumulate any part of the sentence on count 4 in order to achieve an appropriate total sentence. Taking the sentence on count 1 as the base sentence, I would cumulate two years and six months of the sentence on count 2[34] and one year of the sentence on count 3 on each other and on the sentence on count 1. The total effective sentence would be ten years' imprisonment. I would fix a non-parole period of six years and six months' imprisonment.

89 As is always the case, sentencing statistics are of limited use in determining sentence, and reliance upon so-called comparable cases to establish the 'right' sentence is wrong in principle for the reasons described in Hudson v The Queen.[35] That said, the sentences which I propose are not incompatible with the spread of sentences revealed by the most recent relevant Sentencing Snapshot.

90 The judge made ancillary orders - a pecuniary penalty order in an amount of $658,490, a forfeiture order, a disposal order, and a sample retention order under s 464ZFB(1) of the Crimes Act 1958. Additional submissions made by the parties in writing were in agreement as to what should be done.

92 The facts concerning the pecuniary penalty order will need to be reconsidered, the applicant being re-sentenced for lesser offences than those preferred by counts 1 and 2. That order should be set aside. The matter can be dealt with by a competent tribunal at some later time.

93 The forfeiture and disposal orders were made upon the applicant's conviction for offences against s 71 of the Drugs, Poisons and Controlled Substances Act 1981. Those orders might also be made upon the applicant's conviction for offences against s 71AA of that Act. I propose that orders be made accordingly.

[1] In these reasons, I will not keep repeating the formula 'in not less than a [large] commercial quantity', but rather use the phrases 'a large commercial quantity' and 'a commercial quantity'.

[2] Methylamphetamine, 354.5 grams. MDMA, 0.5 gram.

[3] The document identified 153 dealings. Three of the transactions were relied upon only to support the Crown case that the applicant engaged in a trafficking business. There was no proof that any quantity of drugs was trafficked on those occasions.

[4] [2009] VSCA 34; (2009) 21 VR 340.

[5] R v Giretti (1986) 24 A Crim R 112.

[6] R v McCulloch [2009] VSCA 34; (2009) 21 VR 340, 345 [14].

[7] R v Te [1998] 3 VR 566.

[8] R v McCulloch [2009] VSCA 34; (2009) 21 VR 340, 345, [14].

[9] Ibid 348 [20]. [Footnote omitted].

[10] Ibid 348 [22]. [Footnote omitted].

[11] [2005] VSCA 172; (2005) 12 VR 299.

[12] [2005] VSCA 300.

[13] [2007] VSCA 23; (2007) 15 VR 388.

[14] [2008] VSCA 54.

[15] [2005] VSCA 172; (2005) 12 VR 299, 303 [10].

[19] [1998] 3 VR 566.

[20] [2002] VSCA 157; (2002) 5 VR 129.

[21] For instance, there being proof of the total quantity trafficked, the evidence might show that the accused had a 'contract' to supply quantities of the drug on a regular basis to a dealer lower down the chain of supply.

[22] For instance, there being proof of the total amount trafficked, the accused might be shown to have set up a manufacturing process with an evident intention of trafficking the drugs produced on a regular basis; or the accused might be charged with trafficking, on a Giretti count, commencing from a date after he or she had established a trafficking business, from the past extent of which the future extent could be inferred with some confidence.

[23] It will be recalled that, at trial, the applicant offered, in the absence of the jury, to plead guilty to such offences.

[24] [1994] HCA 63; (1994) 181 CLR 487.

[25] [2010] HCA 38; (2010) 271 ALR 493, [33].

[26] [2011] VSCA 48, [19].

[27] [2007] HCA 30; (2007) 230 CLR 559, 596-597, [113].

[28] There was a twenty second occasion. But there the applicant simply said that he was completely out of stock.

[29] In three instances, the Crown did not attempt to prove the quantity trafficked. The other instances were no doubt adduced in support of the Crown case that the applicant was engaged in a business of drug trafficking.

[30] There were, as I have previously noted, some 20,000 such intercepts. The defence had access to them. It was not suggested that any of the intercepts not introduced into evidence gave the lie to the transactions identified by the Crown.

[31] I referred to a similar matter in Worsnop v The Queen [2010] VSCA 188, [39].

[32] [2009] VSCA 280; (2009) 54 MVR 543.

[33] See the definitions of 'drug offence' and 'relevant offence' in s 6B(1) and (3) of the Sentencing Act 1991, and clause 4 to Schedule 1 of that Act.

[34] I have expressed it as a matter of cumulation rather than partial concurrency for ease of understanding.

[35] [2010] VSCA 332.