R v Chhom Nor [2005] VSCA 46

Solicitor to Director of Public Prosecutions (Cth.)

Ms K. Robertson, Solicitor for Public Prosecutions (Vic.)

2. I will invite Chernov, J.A. to give the first judgment in this matter.

6. On 18 December 2002 the appellant, Chhom Nor, who is now aged 34, pleaded guilty in the County Court to three counts contained in two presentments, one filed on 18 December 2002 ("the State presentment") and the other on 19 November 2002 ("the Commonwealth presentment"). The State presentment contained one count which charged the appellant with trafficking a drug of dependence (heroin) on 5 July 2001 contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act"). Count 1 in the Commonwealth presentment alleged that the appellant trafficked a drug of dependence (heroin) between 21 December 2001 and 25 January 2002 contrary to s.71(1) of the Act and count 2 alleged possession by him of a drug of dependence (heroin) on 25 January 2002 contrary to s.73(1) of the Act. The offence of trafficking a drug of dependence carries a maximum penalty of 15 years' imprisonment and the relevant maximum custodial penalty for the offence of possessing a drug of dependence is 5 years.[1] The appellant admitted 13 prior convictions from two court appearances, one in 1997 and one in 1999, including trafficking and possession of heroin, failing to answer bail and handling stolen goods. The appellant has not, however, served a sentence of imprisonment in relation to those offences.

9. After hearing a plea in mitigation on 18 December 2002 made on the appellant's behalf, on 19 December 2002 the learned sentencing judge imposed the following sentences of imprisonment: two years in relation to the State presentment, four years on the first count in the Commonwealth presentment and twelve months on count 2. His Honour ordered that one year of the term of imprisonment imposed on the State presentment be served cumulatively on the sentence imposed on count 1 of the Commonwealth presentment and that otherwise the sentences be served concurrently, thereby producing a total effective sentence of five years' imprisonment. The learned sentencing judge directed that the appellant serve a minimum of three years' imprisonment before becoming eligible for parole.[2]

12. On 30 December 2002 the appellant filed a notice of application for leave to appeal against sentence containing three grounds to which I will refer later. At the hearing of this application on 29 August 2003 by a single judge of this Court pursuant to s.582 of the Crimes Act 1958 the appellant relevantly argued, with leave, an additional ground, namely, that his conviction and sentence on count 2 should be set aside because, in the circumstances, it amounted to impermissible double punishment. His Honour granted the application sought, saying that the appellant had at least a reasonable argument in relation to the proposed new ground.

15. Subsequently the appellant filed notices by which he foreshadowed his intention to apply to the Court to add two further grounds in support of his appeal against sentence and to seek leave to appeal against his conviction on count 2. It is not necessary to give details of these notices. It is sufficient to note two matters. One is that on 26 February 2004, on the application of the appellant, the Registrar ordered that the time limited for the appellant to seek leave to appeal against conviction be extended. The other is that this Court has before it the following matters for resolution:

(a) An appeal against sentence is based on the three grounds set out in the notice of application of 30 December 2002.

(b) An application for leave to add two further grounds to the sentence appeal.

(c) An application for leave to appeal against conviction.

Before dealing with these matters it is appropriate to set out briefly the circumstances of the offending and of the appellant.

22. The circumstances pertaining to the State presentment were these. On 5 July 2001 members of the Victoria Police executed a search warrant at the appellant's premises and there found, in the lining of his jacket, a small plastic bag containing 33.4 grams of heroin which was later tested and found to have purity of 25 per cent. Police also found nearly $5,500 in cash in his wallet and other related items including scissors, foil and three mobile telephones. The appellant was later interviewed by police in relation to these items. He claimed, amongst other things, that the money was part of $10,000 that he had won at Crown Casino on the previous night and that he had used some of this money to purchase heroin. Later, however, when the appellant agreed to plead guilty to the offences as is explained below, he also consented to a forfeiture order in relation to the $5,500. The appellant also contended to the police that the heroin they found had been acquired by him only for his personal use. Not long after his arrest in relation to the above events, the appellant was released on bail.

25. In the course of an investigation into a suspected drug ring in the Noble Park and Springvale areas involving immigrants from Cambodia, on 20 December 2001, officers of the Australian Federal Police obtained a warrant to intercept the appellant's mobile telephone calls. They also placed him under surveillance. The intercepts revealed that, between 20 December 2001 and 25 January 2002, a significant number of calls were made to the appellant's mobile telephone by various persons requesting to meet him. In the course of these calls, quantities and prices were discussed, albeit by oblique reference. For example, terminology such as "0.4, 0.5" and "a cap" was used to describe quantities of heroin. Arrangements were made for the caller to come around to see the appellant, or to meet him at various locations in the Springvale and Noble Park areas. The telephone intercepts also disclosed that the appellant spoke with a number of callers in the Khmer language in the course of which he arranged for the bulk purchase of heroin. The pattern that emerged from the evidence gathered by the police was that of the appellant engaging in significant heroin trafficking. More particularly, the evidence revealed that the appellant had access to supplies of heroin in bulk and that, notwithstanding that he was on bail, he engaged in "hands on" sales of heroin to a considerable number of users and lower level dealers, as well as using the services of his girlfriend and another friend to sell heroin on his behalf. Although the appellant ultimately admitted that he sold heroin, he maintained that he did so in order to finance the purchase of the drug for his own use.

28. On 25 January 2002 the police executed a search warrant at the appellant's premises, but shortly before they did so they observed a man entering the appellant's apartment, who left only a short time later and then injected a substance in his arm. When the police searched the premises pursuant to the warrant they found a green balloon containing 2.8 grams of pure heroin on a path just outside the rear door of the appellant's apartment, and $3,090 cash in his wallet. They also seized two mobile telephones, a pair of electronic scales and an open packet of water balloons. In the course of the search, the appellant received an SMS text message on his mobile telephone that stated: "Ill come round tomorrow for my point three and that's when I'll drop the ounce off."

31. Following the execution of the warrant, the appellant was arrested and interviewed by the police, in the course of which he admitted to being a heroin user, but denied that he trafficked the drug. He claimed that the balloons had been bought for his girlfriend's child and that he used the electronic scales to weigh gold. He denied any knowledge of the green balloon containing the pure heroin that was found on the path immediately behind his home. The appellant also claimed that the money in his wallet represented his wages from his work. He made no comment in relation to the text message received by him during the search of his premises, claiming that nobody would have tried to contact him in order to purchase heroin. Initially, the Federal Police laid four charges against the appellant, including possession of a drug of dependence contrary to s.73(1) of the Act, possession of a prohibited import contrary to s.233B of the Customs Act 1901 (Cth) and two counts of trafficking in a drug of dependence contrary to s.71AC of the Act during the period 20 December 2001 and 25 January 2002. It seems that because s.71AC operated only in respect of offences committed after 1 January 2002, the latter charges were later dropped. Be that as it may, at a case conference held on 9 October 2002 the appellant indicated that he would plead guilty to the offences that ultimately formed the two counts in the Commonwealth presentment. In those circumstances, the Commonwealth presentment was filed on 19 November 2002[3] and the appellant was arraigned on the two presentments before the learned sentencing judge on 18 December 2002 and pleaded guilty to the three charges.

35. I now turn to set out briefly the appellant's relevant personal circumstances. He was born on 10 August 1970 in Cambodia and spent a considerable period in a refugee camp on the border of that country and Thailand, living in the most terrible conditions. His family managed to emigrate to Australia approximately 16 years ago and the appellant settled into his new life here and did not become involved with drugs until about the mid-1990s. Unfortunately, at or about that time he became a regular user of heroin and consequently became well-known for this to the police in his locality. He also began to sell heroin and it is plain enough that, by late 2001, he was turning over a considerable amount of the drug which, the learned sentencing judge estimated, gained him profit which exceeded the $2,500 per week that he claimed he spent on the purchase of heroin for his own use. When interviewed by the Federal Police following his arrest on 25 January 2002, he first denied selling the drug, but eventually, as I have noted, admitted doing so directly, as well as through his girlfriend and another person. He claimed that he did so for the purpose of financing the purchase of heroin for his own use.

38. The appellant's work record, absent his drug problem, is not unimpressive. It seems that before he succumbed to regular drug use, he was continuously employed in various unskilled jobs. Shortly before the first of the offences in question he worked as a wet bed printer for a printing company. He lost this position when the owners of the company discovered that he was a regular user of heroin. In about May 2002, however, he persuaded them to take him back on condition that he would give up the use of drugs. At the hearing of the plea in mitigation, a representative of the company's owners told his Honour that the owners, who had a son who was also addicted to heroin, took a particular interest in the appellant and effectively arranged for him, and their son, to undertake a methadone programme. Regrettably their son abandoned it, and, not long thereafter, died of heroin overdose. The appellant, however, continued with the programme and thus, kept his job. There was evidence before the learned sentencing judge that indicated that the appellant had ceased using heroin after his arrest on 25 January 2002. For example, his Honour had before him a letter from the appellant's doctor indicating that he believed that the appellant had complied with his treatment and was not using heroin. The appellant gave sworn evidence that he was continuing with the methadone programme and was committed to staying off heroin and a senior police officer, who worked in the appellant's locality, gave evidence that the appellant had been intercepted by them on ten or so occasions after the second set of offending conduct and that on each occasion his appearance and demeanour indicated that he had ceased using heroin.

Leave to appeal against conviction on count 2

42. I now turn to consider the appellant's arguments in support of the matters that are before the Court and deal first with his application for leave to appeal against conviction on count 2. It was contended under this proposed ground, as I have noted, that the conviction should be set aside because it offends the rule against double punishment given that, it is said, the factual basis of count 2 "is subsumed entirely in the first count ..." .[4]

45. As McHugh, Hayne and Callinan, JJ. explained in their joint judgment in Pearce v. The Queen[5], the principle of double punishment is an aspect of the rule against double jeopardy, which may operate at the prosecution, conviction or punishment stages of the criminal judicial process. At the prosecution stage, for example, the rule against double jeopardy may entitle the offender to enter a plea in bar - autrefois acquit or autrefois convict - in relation to one or more counts on the presentment, or it may entitle the offender to a stay of the proceeding on the basis that it is an abuse of process. It seems plain enough that these two aspects of the rule against double jeopardy, where they operate, go to conviction in the sense that, if conviction has been secured in breach of either of the two aspects of double jeopardy it will ordinarily be set aside. The position with double punishment, however, is relevantly different, inasmuch as breach of it does not necessarily go to conviction; the principle is essentially concerned with "whether [the offender] was entitled to be sentenced in some way differently from the sentence imposed upon him".[6]

48. Before analysing the various aspects of double punishment it is appropriate to note that it has not been suggested by the appellant's counsel, nor could it have been, that a plea in bar was available to the appellant in respect of count 2. Similarly, it was not claimed that charging the applicant with the two counts on the Commonwealth presentment amounted to an abuse of process. It was accepted, rightly, I think, that there are material differences between the two offences - count 1 being essentially concerned with the sale of heroin between certain dates while count 2 involved possession of (different) heroin on 25 January 2002. Moreover, the essential facts relied on in proof of each offence are materially different as are the respective periods of offending.[7] In the circumstances, it is unsurprising that the only aspect of the rule against double jeopardy that counsel sought to invoke in relation to count 2 was double punishment.

51. That there is an apparent conflict in the formulation of the elements of that principle was recognised in the joint judgment in Pearce, where their Honours noted:[8]

"In R v Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ stated that there is 'a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act' ... whereas ... Humphreys J of the English Court of Criminal Appeal stated '[i]t is not the law that a person shall not be liable to be punished twice for the same act; it has never been so stated in any case, and the Interpretation Act [1889 (UK)] itself does not say so. What s 33 says is: 'No person shall be liable to be punished twice for the same offence.'"[9]

Nevertheless, as their Honours explained, the essential aspects underpinning the rule against double punishment can be stated in the following terms.

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. ... [T]he punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

And Kirby, J. said in that case in relation to double punishment:[10]

"if the case is not one for the application of a plea of autrefois ... nor one in which a judicial stay is appropriate, special care must still be taken by the sentencing judge to avoid the imposition of punishment which imposes sanctions for criminal conduct in respect of which the offender has already received sentence."[11]

"... the principles involved in the notion of `double jeopardy' also apply at the stage of sentencing. They find expression in the rule of practice, `if not a rule of law', against duplication of penalty for what is substantially the same act.""

Thus, it is apparent from Pearce that, in general terms, the rule against double punishment is concerned with a situation where the offender has been, or is to be, punished twice for the same criminal act or set of acts.[13] Importantly, I think, their Honours went on to caution[14] that the identification of a single act as common to two offences "may not always be straightforward" but the exercise should not be attended by "excessive subtleties and refinements" and should be approached with commonsense and "not as a matter of semantics".

62. In Pearce, the presentment alleged two offences in respect of the one incident, namely, the appellant breaking into the victim's home and beating him and thereby inflicting serious injury. One offence was charged under s.33 and the other under s.110 of the Crimes Act 1900 (New South Wales).[15] The High Court dismissed the appellant's claim that the trial judge erred in refusing a stay of the proceeding on the ground that the appellant was thereby placed in double jeopardy and the indictment was, therefore, oppressive and an abuse of process. Upon being arraigned, the appellant pleaded guilty to a number of counts including the two in question and, so far as is relevant, was sentenced to the same term of imprisonment on each of the two counts to be served concurrently. The High Court concluded that, in the circumstances, no plea in bar was available and the proceedings did not constitute an abuse of process. But the majority went on to say that, given that identical sentences had been imposed on the two counts in question, each sentence must have contained a portion that punished the appellant for one and the same act, that is, inflicting grievous bodily harm on his victim. Thus, it was said by their Honours[16] that, prima facie, the appellant was doubly punished for the same act. The court also considered that, notwithstanding that the sentences were ordered to be served concurrently and that it could be said that the overall sentence was proportionate to the criminality of the appellant's conduct, the individual sentences were nevertheless flawed because they punished him twice for a single act. In the circumstances, the order of the Court of Appeal dismissing the application for leave to appeal against sentence was set aside[17] and the matter was remitted to that court to be dealt with consistently with their Honours' reasons. The dismissal of the appellant's application for leave to appeal against conviction was affirmed. It is relevant to note that, notwithstanding that all members of the High Court considered that the appellant was subject to double punishment, it was not suggested that a sentence could not be properly imposed on each of the two counts.

65. In support of his case that the appellant has been doubly punished Mr Sheales emphasised that it was quite apparent that the Crown would have relied on the appellant's possession of heroin and associated items in support of its case on count 1. That this is so, said counsel, is obvious from the Crown's opening at the hearing of the plea in mitigation, where it ran together the evidence on the two counts alleged by the Commonwealth presentment and from his Honour's sentencing remarks. Mr Sheales argued that it is a matter of common sense that the Crown would rely on nearly all the evidence going to count 2 - essentially, possession by the appellant of heroin and items associated with trafficking - as also going to establish count 1. To emphasise this, Mr Sheales pointed out that, because count 1 was a "between dates" count, trafficking by the appellant for the purpose of that count continued into the period covered by count 2, certainly until the receipt of the text message on the appellant's mobile telephone. Consequently, said counsel, the heroin that was in the appellant's unlawful possession on 25 January 2002 was that which was "left over" from his trading during the preceding period. In those circumstances, it was said for the appellant, he was impermissibly punished twice for the one offence. Mr Sheales submitted that R. v. Langdon and Langdon[18] supported his arguments on double punishment, claiming that the case was on all fours with the present one.

68. In that case the two offenders, a married couple, were involved in the manufacture and sale of amphetamines. They were charged, inter alia, with trafficking and possession of a drug of dependence contrary to ss.71 and 73 of the Act. In order to understand the decision and its relevance to this proceeding it is sufficient if only the case relating to the husband is analysed. Count 3 in the presentment alleged that he trafficked in amphetamines between 1 March and 7 August 2001. Count 9 contended that he was in possession of amphetamines on 7 August 2001 and count 4 claimed that, essentially between the same dates that are applicable to count 3, Langdon had in his possession substances and other items for the purpose of trafficking in a drug of dependence. He pleaded guilty to those counts and was convicted and sentenced. He then sought leave to appeal against conviction and sentence. In a comprehensive judgment, Gillard, A.J.A., with whom Batt and Eames, JJ.A. agreed, concluded that, in the circumstances, the sentence imposed on count 9 offended the rule against double punishment and should, therefore, be set aside. The relevant facts in that case were that, upon executing a search warrant, the police found at the offenders' premises accounting records consistent with the appellant trafficking in the drug, although he initially denied such conduct. Importantly, however, at the hearing of the plea in mitigation, counsel for the Crown conceded that if particulars of count 3 had been given by the Crown, the fact that the amphetamines were found in Langdon's possession would have been a matter relied upon to establish trafficking in accordance with s.73(2) of the Act.[19] Consequently, on the Crown case, the criminal act of unlawful possession of the drug by Langdon would, by reason of the operation of s.73(2) of the Act, provide prima facie evidence of his trafficking that drug. Thus, to punish him on count 3, for what was essentially an aggravated form of the offence of "possession", and then to punish him again on count 9 for possession simpliciter of that drug, would clearly constitute double punishment. That is essentially what Gillard, A.J.A. found and, as Batt, J.A. said in his reasons, "the possession of ... amphetamine was part of the trafficking, as prima facie evidence of trafficking if constituted by virtue of s.73(2) of the [Act] was not displaced". In those circumstances, the Court set aside the sentence on count 9.[20]

71. There are other cases, to which the learned President referred in argument, where the court has recognised that where the Crown seeks to establish trafficking on the sole, or essential, basis that the offender was in possession of the drug for sale and thus, under s.70 of the Act, was deemed to traffick it, to charge the offender with the further count of possession would amount either to an abuse of process or double punishment. Thus, in Reardon v. Baker[21], the applicant was convicted in the Magistrates' Court of trafficking and possession of heroin. The Crown case on trafficking was based on her relevant admission at the time of her arrest that she had possession of the drug only for the purpose of selling it to others. This conduct was deemed to constitute trafficking by reason of the relevant definition of "traffick" in s.70 of the Act, which deems possession of a drug of dependence for sale, trafficking. Importantly, there was no evidence of any sale of the drug by the applicant on the relevant date. Thus, the Crown case of trafficking relied solely on the admissions of the criminal act of "possession". J.H. Phillips, J. concluded[22] that, in the circumstances, possession of heroin for sale was the only basis of the charge of trafficking against the applicant and that, therefore, "a conviction for possession of the same drug at the same place and on the same date is offensive to the common law principle [against double jeopardy]." The conviction in relation to the possession charge was quashed and the conviction for trafficking was confirmed.

74. Similarly, in R. v. Glaister[23] this Court held that the sentencing judge erred by cumulating on the sentence imposed in respect of trafficking part of the sentence imposed for possession. The Crown case for trafficking was based solely on the applicant's manufacture of the drug, there being no evidence of sale of the drug, such manufacture being deemed trafficking according to s.70 of the Act. In those circumstances, the Court held that the possession charge in relation to the manufactured drug was wholly subsumed by the trafficking charge. Hedigan, A.J.A. relevantly said "in this case ... the facts inculpated trafficking by manufacture to the same extent as possession. The possession was a consequence of the manufacture". Thus, the Court ordered that the sentence in relation to the count of possession be served concurrently with that imposed for trafficking in order to ensure that the offender was not punished twice for those factual elements common to both charges.

77. The same principle was applied in DPP v. Collins[24]. In that case, the respondent was relevantly charged with trafficking in amphetamines and possession of that drug. He pleaded not guilty to the trafficking charge but guilty to possession. After a trial, he was convicted on the trafficking count. The Crown relied in its case on trafficking almost wholly on possession by the respondent of the drug. The respondent was sentenced in respect of the trafficking offence, inter alia, to 12 months' imprisonment, eight months of which was suspended for three years. A bond was imposed in relation to the possession count. The Director appealed on the ground that the sentence imposed on the trafficking count was manifestly inadequate. Winneke, P., with whom the other members of the Court[25] agreed, in dismissing the appeal nevertheless rejected the submission of the respondent's counsel that the conviction on the trafficking charge was a nullity because he had already been convicted of the lesser offence of possession that depended for its proof on the same facts as that alleged in relation to trafficking. The learned President relevantly said[26]:

"It may well be that, in given circumstances, a conviction on a lesser offence will create a bar to subsequent prosecution on a more serious offence. This will occur where the subsequent and more serious offence amounts to an aggravated form of the earlier offence, but relies for its proof on the same evidential facts."

81. But, as Gillard, A.J.A. observed in Langdon[27], each case must be determined in accordance with its own circumstances. In my view, the circumstances here are materially different from those that prevailed in the cases to which I have just referred, including Langdon. Importantly, in the present case, the criminal act of unlawful "possession" was not put forward by the Crown as amounting to a statutory trafficking for the purpose of count 1. It clearly did not seek to take the benefit of the extended statutory definition of trafficking under s.70 of the Act. Moreover, not only did it not indicate that it would rely on s.73(2) of the Act but, as I understand Mr Gilbert, who appeared for the respondent in relation to the Commonwealth presentment, it is doubtful if the Crown could have invoked that provision, notwithstanding that the total amount of heroin that was found at the appellant's premises amounted to a "trafficable quantity" for the purpose of it. It seems that the appellant's girlfriend was on the premises when the heroin was found there so that, given her association with drug trafficking, the Crown might have had difficulty in establishing that the appellant was in possession of all, and, therefore, a trafficable quantity, of the heroin, thus depriving it of the benefit of s.73(2). In any event, it is clear enough that the Crown case on count 1 was not based on the appellant's criminal act of "possession". The Crown's submissions to his Honour and the sentencing remarks make it plain that its case on the trafficking count was almost essentially reliant on the evidence of the intercept telephone calls and police surveillance. I consider that, even if it is accepted that, as Mr Sheales submitted, at trial the Crown was likely to have pointed to the "possession" evidence as confirming what has been established by its primary evidence, it could not be said, as a matter of common sense, that the Crown case on the trafficking count relevantly relied on actual possession of heroin by the appellant. Moreover, unlike the situation where possession of heroin was said to constitute statutory trafficking, on the Crown case in relation to count 1, the heroin that was trafficked was obviously not "the same" heroin as that which was the subject of count 2. I also consider that it is irrelevant to my conclusion on this issue that, as counsel contended, count 1 is a "between dates" count and could be said to extend into the period covered by the possession count. As a matter of common sense the period of trafficking is quite separate from that which is relevant to the possession count.

84. Consequently, in my view the appellant must fail in his contention that the conviction, or the sentence, on count 2 should be set aside on the basis of double punishment. In the circumstances, I consider that the appellant's application for leave to appeal against conviction should be dismissed.

Proposed ground 4 - error in sentencing by reference to uncharged acts

88. The next matter that was pressed was the appellant's application for leave to add ground 4 to the sentencing grounds. As re-formulated in the course of argument, this proposed ground alleges that, in sentencing the appellant on count 1, his Honour did so essentially by expanding impermissibly the period of the offence charged by that count to one between July and 21 December 2001 based on the appellant's admissions made in the course of his cross-examination that he had trafficked over the course of this lengthier period. That his Honour sentenced the appellant on that basis, counsel submitted, is plain from his sentencing remarks. During the hearing the appellant gave evidence that was plainly intended to confirm his case that he had sound prospects of rehabilitation, and in particular that he was, and intended to continue to remain, drug-free. It is a relatively rare case when the offender gives sworn evidence during the hearing of the plea in mitigation that is being made on his or her behalf, no doubt partly due to the fact that, in doing so, the offender runs the risk that the Crown might elicit from him or her, in cross-examination, matters that are not favourable to the offender's case. And such a risk materialised here inasmuch as, as I have already noted, during his cross-examination by counsel for the Crown - no doubt directed at testing the reliability of the appellant's claim that his prospects of rehabilitation were sound and, more particularly, that he will remain drug-free - adduced evidence from him that he had trafficked heroin on his release on bail in July 2001 and had continued to do so until his arrest in January 2002. Mr Sheales explained that the appellant was not cautioned as to his rights against self-incrimination before being cross-examined in this manner. I note, however, that not only was no objection taken to that line of questioning by his counsel,[28] counsel later sought to take advantage of this admission by urging his Honour to take account of that fact and saying that "thankfully, the evidence has been frank". In his submission to the learned sentencing judge, the appellant's counsel contended that the admissions so made by the appellant amounted to some recognition of a desire on his part to achieve rehabilitation.

91. In order to determine if his Honour erred as is contended by the appellant, it is necessary to consider his Honour's impugned sentencing remarks in context. Near their outset, the learned sentencing judge acknowledged that the charge in count 1 related to the period 21 December 2001 to 25 January 2002. Then, after dealing with the appellant's personal circumstances, he turned to deal with the submission of the appellant's counsel that, because he had reformed his ways, a non-custodial sentence should be imposed. His Honour rejected this suggestion in his sentencing remarks, just as he had done earlier in the course of the hearing of the plea in mitigation, saying in his sentencing remarks: "If you had ceased trafficking after you had been initially charged then you may have had some chance of avoiding immediate custody." In my view, on a fair reading of the sentencing remarks, all his Honour meant to convey by that passage was that, had the appellant been before him in relation to the State presentment only he may have escaped incarceration. I do not think that the learned sentencing judge meant that he was compelled to impose an immediate custodial sentence because the appellant had trafficked between July and December 2001. Similarly, I do not think that his Honour's statement that " ... not only did you continue to go about your trafficking business even though you must have realised when you were on bail that any offence you committed on bail would have serious consequences for you" meant that he was punishing the appellant for trafficking during the extended period. I consider that the only relevant aggravating feature of the appellant's conduct that the judge took into account in sentencing him on count 1 was his trafficking in breach of the terms of his bail. His Honour was clearly entitled to do so.

94. But even if it could be said that his Honour erred as was contended for by counsel under this proposed ground and that, therefore, the sentencing discretion had been re-opened, given the gravity of the offence and of the offending, including the aggravating matters to which I have referred and his prior convictions, and the importance of the principle of general deterrence in this case, I would not impose a head sentence in respect of count 1 that would be less than that imposed by his Honour. In coming to this conclusion I have taken into account the appellant's commendable progress towards rehabilitation.

97. In the circumstances, I would refuse the appellant leave to add the proposed ground 4.

Proposed ground 5 - excess weight to appellant's breach of bail

101. I would also refuse the appellant leave to add this ground. In essence it is a re-statement of proposed ground 4. It asserts that his Honour erred in giving weight to the appellant's admission of trafficking between July and December 2001. But, as I have already mentioned in the context of discussing the proposed ground 4, I consider that his Honour did not sentence the appellant on that basis.

Ground 1 - failing to give sufficient weight to appellant's youth and rehabilitation

105. In my view, there is no merit at all in this ground. First, it is clear that his Honour took into account for sentencing purposes the appellant's progress towards rehabilitation and that he treated him as a "youthful offender" - the learned sentencing judge referred to him in those terms. On the matter of the appellant's prospects of rehabilitation his Honour said, just before he pronounced sentence: "I have been impressed by your attempts at reformation and also by your attempts, so far successful, of weaning yourself from heroin. I only hope that despite the prison sentence you will now have to serve, that you continue with your stated aim of never again using heroin." I mention in passing that, although the appellant was a relatively young man at the time of the offending, I consider that his Honour's characterisation of him as a "youthful offender" was generous. As Batt, J.A. pointed out in R. v. Mills[29], whether the offender is "youthful" for relevant purposes is to be determined at the date of sentencing. The appellant was aged 32 when he was sentenced and at the time of offending he was over 30. Secondly, counsel could not point to anything in his Honour's sentencing remarks that shows that he failed to give these mitigating factors due weight for sentencing purposes. Those matters had to be balanced against a number of serious aggravating factors and the operation of the sentencing principle of general deterrence, which was of considerable importance in this case, notwithstanding that, at all relevant times, the appellant was a young man.

Ground 2 - head sentences are manifestly excessive

109. I consider that this ground must also fail. It seems to me that, given the very serious nature of the offence - as has been emphasised by this Court on a number of occasions and which was recognised by the learned sentencing judge - and the serious nature of the offending, a significant part of which occurred while the appellant was on bail, and having regard to his criminal history, it could not be sensibly said that any of the head sentences imposed are beyond the range that was properly available to his Honour.

113. To reiterate, I consider that the appeal against sentence and the application for leave to appeal against conviction should be dismissed and that the application for leave to amend the grounds of appeal in relation to sentence should be refused.

The appeal against sentence and the application for leave to appeal against conviction are dismissed.

The application for leave to amend the grounds of appeal in relation to sentence is refused.

[1] Section 73(1)(c) of the Act.

[2] Although the sentences are correctly reflected in the presentments, there is an error in the Return of Prisoners (or the quadruplicate) which shows that the appellant was sentenced on count 2 to two years' imprisonment. Any correction that may be required will need to be addressed by the County Court and not this Court - see R. v. Saxon [1998] 1 V.R. 503; R. v. Ahomana [2001] VSCA 155.

[3] Although the person who signed the Commonwealth presentment was an officer of the Commonwealth, it seems that he was also a Crown prosecutor appointed pursuant to s.31 of the Public Prosecutions Act 1994 and thus empowered to sign the presentment on behalf of the Victorian Director of Public Prosecutions - see R. v. Holden [2001] VSCA 63 at [24].

[4] It is clear enough that the Court can entertain an appeal against conviction notwithstanding a plea of guilty (although it is only in very exceptional circumstances that it will do so) - see, for example, R. v. Stewart [1960] VicRp 16; [1960] V.R. 106.

[5] (1998) 194 C.L.R. 610 at 614. See also Gummow, J. at 624, 628-629.

[6] See joint judgment in Pearce at 615.

[7] It should be noted, however, that even if two or more charges are said to have arisen from the one set of circumstances it does not necessarily follow that the rule against double jeopardy has thereby been offended such that the proceedings must be stayed. It was recognised in Pearce at 622, for example, that a complex act by an offender may contain all the elements of more than one offence. Whether the laying of two or more charges that have arisen from the one set of facts amounts to an abuse of process will depend on the particular circumstances of the case.

[13] The thrust of this principle is reflected in s.51(1) of the Interpretation of Legislation Act 1984 which relevantly provides: "Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission." Also see, for example, R. v. Henderson [1998] VSCA 83; [1999] 1 V.R. 830 at 836.

[15] Section 33 provided that whosoever maliciously by any means wounded or inflicted grievous bodily harm upon any person with intent in any such case to do grievous bodily harm to any person should be liable to penal servitude for twenty-five years. Section 110 provided that whosoever broke and entered a dwelling-house and while therein inflicted grievous bodily harm upon any person should be liable to penal servitude for twenty-five years.

[17] Kirby, J. dissenting. His Honour would not have remitted the question of sentence to the intermediate appellate court notwithstanding that the appellant was doubly punished because he considered that, given the order for concurrency, no substantial injustice would follow if the sentences on the counts were left to stand as the total effective sentence properly reflected to totality of the offending

[18] [2004] VSCA 205.

[19] Section 73(2) of the Act relevantly provides: "Where a person has in his possession ... a drug of dependence in a quantity that is not less than the trafficable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence."

[20] I note for completeness that the court did not reach the same conclusion in respect of count 4, saying that it dealt with the criminal act of possession of equipment for trafficking which differed materially from the criminal act of trafficking. Consequently, their Honours concluded that counts 3 and 4 were separate and distinct from each other so that there was no relevant overlap between them and no double punishment was involved.

[21] [1987] VicRp 72; [1987] V.R. 887.

[24] [2004] VSCA 179.

[28] At one stage it was suggested that the prosecutor required leave of the court under s.399 of the Crimes Act 1958 before he could properly put those questions to the appellant, but it seems plain enough that, as Ms Carlin for the Victorian Director of Public Prosecutions pointed out, the section operates only in the context of a trial. Section 399 does not govern the elicitation of evidence on a plea.

[29] [1998] 4 V.R. 235 at 241.