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[2011] VSC 452
defendant. Sentenced to four years' imprisonment with a non-parole period of two years for trafficking in a commercial quantity of methylamphetamine. The court refused to find the family circumstances...
El-Hage pleaded guilty to trafficking in a commercial quantity of methylamphetamine produced by a Rye laboratory. He acted as a broker, arranging chemicals and deliveries and receiving part of the product. At sentence he relied on family hardship: a wife with long-standing bipolar disorder and a mildly disabled son. The court found the family circumstances serious but not 'exceptional' because they were longstanding, professional and family supports existed, and there was no direct evidence from treating clinicians about the likely impact of imprisonment. The court accepted that the extensive delay between offending and sentence was a strong mitigating factor. Considering seriousness, deterrence and parity with a co-offender who had different antecedents and subsequent offending, the judge sentenced El-Hage to four years imprisonment with a two-year non-parole period, and stated that without his plea the sentence would have been six years with a four-year non-parole period.
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Between September 2002 and March 2003 a clandestine laboratory operating at Rye manufactured methylamphetamine for commercial distribution. The court found that two experienced manufacturers ran the laboratory and that Jacques El-Hage played a brokering role. His activities consisted of arranging supply of chemicals for manufacture, and arranging delivery of the finished product; he was paid in part by receipt of a portion of the product rather than for personal use ([3]–[7]). Police surveillance and intercepted calls led to a raid and arrests on 11 April 2003; El-Hage was arrested and his home searched (caffeine was located) but was not charged at that time. He was charged on 23 July 2008 after a co-operator made detailed statements in 2006; he pleaded guilty on 8 July 2011 and was sentenced by Whelan J on 20 September 2011 ([4], [25]–[27], [33]).
At sentencing El-Hage relied heavily on his personal circumstances. He is a Lebanese-born father with two sons (now teenagers), his wife Leanne has a long-standing mental illness (diagnosed ultimately as bipolar II), and the younger son has developmental difficulties and a mild intellectual disability (initially assessed within an autism spectrum and later described as 'borderline' cognitive functioning). The wife had multiple admissions to the Melbourne Clinic between 2008 and 2011 and was under continuing psychiatric care; the family had access to extended family support and some professional services for the sons ([18], [21], [23]–[32]).
The Crown and defence agreed delay between offending and sentence was significant; El-Hage emphasised delay, his plea of guilty and remorse, his lack of relevant convictions since 1992 and the family hardship to seek mitigation. The Crown accepted delay and that imprisonment would be burdensome to the family but did not accept that the family circumstances were of such an exceptional character as to justify avoiding custody. There was also a challenge on parity with co-offender Milad Mokbel who had pleaded guilty and been sentenced in respect of the same laboratory ([38]–[46]).
Whelan J concluded that, although family hardship was real and mitigating, it did not meet the threshold of being 'exceptional and extreme' to displace a custodial sentence. The judge also accepted delay as a powerful mitigating factor. Balancing seriousness, deterrence, parity and mitigation, El-Hage was sentenced to four years' imprisonment with a two-year non-parole period. The court stated under s 6AAA that, absent the plea, the sentence would have been six years with a non-parole period of four years ([46], [48]–[54]).
There are four interconnected strands to Whelan J's reasoning.
Nature and seriousness of the offence. The trafficking was commercial in scale and organised for profit. The maximum penalty (25 years) and the facts (supply chain brokering, discussion of cutting agents, receipt of product as payment) established high culpability; accordingly general deterrence and denunciation were important sentencing objectives ([6], [7], [51]).
Family circumstances as mitigation, evidentiary and threshold considerations. Defence relied on family hardship as a ground for substantial mitigation. The judge accepted the wife had severe, long-standing mental illness and the younger son had developmental problems, but emphasised the evidentiary limits of the material relied on. The principal psychiatric evidence pointing to likely catastrophic effects of imprisonment came from a single consultant, Dr Cidoni, who had assessed the wife once and had not seen the children; he had not consulted the wife's treating psychiatrist (Associate Professor Tanaghow) and derived much information from the wife herself. There was no direct evidence from treating clinicians about the expected impact of incarceration. The judge regarded such direct evidence as important and gave limited weight to a single, retrospective assessment ([21], [31]–[37], [48]).
Availability of supports and non-exceptionality of the circumstances. The judge emphasised that the wife's illness was long-standing and of a type not uncommon in the community; the son was only mildly disabled and was in mainstream school; extended family and professional supports were available. Those facts reduced the degree to which this family situation could be said to be 'exceptional and extreme' relative to the ordinary hardships families experience when a member is imprisoned ([48]).
Mitigation for delay and parity. The court accepted the delay between offending and sentencing was significant and explicable by investigative and related factors; accordingly delay had powerful mitigating effect ([44]–[46]). Parity with Milad Mokbel required comparison on culpability, prior convictions, periods of offending and subsequent conduct. Differences (El-Hage's prior convictions; Mokbel's subsequent serious offending and totality considerations affecting his sentence) made parity arguments neutral or favouring differing outcomes ([41]–[43], [47]).
Taken together, these reasons led the judge to impose a sentence reflecting both the seriousness of the crime and the mitigating weight of delay and personal circumstances, but not to the extent of avoiding immediate custody.
Before this decision, Victorian authorities had developed the law on family hardship and 'exceptional circumstances' in sentencing. Whelan J expressly noted prior authorities (R v NAD [2008] VSCA 192, Markovic v The Queen [2010] VSCA 105, DPP v Gerrard [2011] VSCA 200 and his own earlier decisions including R v Cowan [2010] VSC 321) and applied established principles about the threshold for exceptional family hardship ([38]). He also relied on the Court of Appeal authority R v Merrett, Piggott and Ferrari in treating delay as a significant mitigating factor ([46]).
This judgment reaffirms two clear points for sentencing practice in Victoria:
Exceptional family hardship remains a high threshold. Courts require evidence that the impact of imprisonment on family members will be extraordinary. Long-standing illness, availability of alternative supports, and lack of treating clinicians' evidence reduce the likelihood that family circumstances will be found exceptional ([48]).
Delay that is explicable will be afforded significant mitigating weight. Even where delay arises for legitimate investigative reasons, its mitigating force is powerful and must be reflected in sentence ([46]).
After this case, practitioners can expect sentencing judges to scrutinise the quality of medical and psychological evidence relied on to prove exceptional family hardship and to continue to treat significant, explicable delay as a strong ground for mitigation.
Passage: "What you did was to arrange for the supply ... You received payment ... in the form of a portion of the finished product." ([6]) Plain English: The judge describes El-Hage's role as a facilitator or broker in a commercial supply chain, paid in drugs not money, which shows active involvement in trafficking rather than mere peripheral contact.
Passage: "Delay is a significant mitigating factor here. The delay is explicable, but the mitigating effect is powerful nevertheless." ([46]) Plain English: Even when the court accepts there's a good reason for delay in prosecution, that delay still counts for a lot in reducing the sentence.
Passage: "I have concluded that exceptional circumstances of family hardship are not established here ... (1) ... (5) There is no evidence from any of the treating psychiatric or psychological professionals ..." ([48]) Plain English: The judge lists the reasons he rejects the submission that the family’s problems are so unusual as to avoid prison, emphasising the importance of direct evidence from the people's actual treating clinicians.
Passage: "The offence ... is a very serious one ... General deterrence and denunciation are very important in such cases." ([51]) Plain English: The judge stresses that serious drug offences need to be punished in a way that discourages others and shows societal disapproval.
Passage: "I sentence you to four years' imprisonment. I fix a non-parole period of two years." ([53]) Plain English: The operative sentencing decision: four years' jail, with eligibility for parole after two years.
This decision is directly applicable where:
A defendant pleads guilty to commercial-scale drug trafficking (methylamphetamine) and seeks to rely on family circumstances (serious parental mental illness, child disability) to avoid or reduce immediate custody.
The defence relies on single, short-term psychiatric assessments (not from treating clinicians) to show exceptional effects of imprisonment.
There is significant delay between offending and charging/sentencing attributable to investigation or co-offender-related factors.
In such fact patterns, a sentencing judge will inquire whether: the family difficulties are truly exceptional; treating clinicians have provided evidence about the expected impact of incarceration; alternatives and supports exist for the family; and whether delay meaningfully reduces the sentence. If the family hardships are longstanding, common, supported by extended family and professional services, and not supported by treating clinicians' evidence of catastrophic impact, the precedent points towards recognising mitigation but not treating family hardship as a separate factor sufficient to avert immediate custody ([21], [31]–[37], [46], [48]).
This judgment itself cites and considers appellate authorities on family hardship and delay, and Whelan J aligns his reasoning with those authorities ([38], [46]). Subsequent courts will treat El-Hage as an example of careful assessment of family hardship: emphasising the evidential threshold and the need for treating clinicians' assessments if the defence seeks to rely on family collapse or suicide risk as a determinative sentencing factor. It will be cited where delay is present and where parity with co-offenders is contested, particularly to illustrate comparative analysis factors (role, prior convictions, subsequent offending) ([41]–[47], [48]).
Practitioners should expect appellate courts to uphold such an approach where the evidentiary shortcomings identified by Whelan J are repeated. Conversely, where treating clinicians give direct, contemporaneous evidence that incarceration will cause catastrophic effects, later courts may find exceptional circumstances where El-Hage did not.
Quantifying 'exceptional and extreme'. Whelan J identifies factors that weighed against exceptional hardship in this case, but the judgment does not provide a bright-line test. Future cases must continue to refine what factual combinations (e.g. severity, immediacy of risk, lack of supports) cross the threshold.
Weight to opinions from independent consultants versus treating clinicians. The decision places clear emphasis on the lack of treating clinicians' evidence, but does not entirely exclude well-founded independent assessments. The extent to which a single, carefully reasoned independent assessment can suffice remains a live issue.
Interaction between delay mitigation and plea discounts. Whelan J stated a s 6AAA hypothetical sentence absent a plea; his approach indicates cumulative application of mitigation. How courts should calibrate the combined effect of significant delay, plea, remorse and other mitigation in high-range offences is a continuing sentencing question.
Parity where co-offenders have materially different subsequent conduct. The judgment recognises that later offending by a co-offender justifies different outcomes. How to reflect the moral culpability of post-offence conduct while preserving proportionality remains a practical challenge.
For practitioners preparing mitigation based on family hardship, this case underlines the importance of obtaining contemporaneous, direct evidence from treating professionals, documenting the availability or absence of extended family supports, and addressing how delay and other mitigating factors should be quantitatively reflected in a proposed sentence.
CRIMINAL LAW - Sentence - Trafficking in a commercial quantity of methylamphetamine - Whether family circumstances exceptional - Wife with mental illness and one son mildly disabled - Exceptional circumstances not established - Delay - Parity - Sentenced to four years' imprisonment with non-parole period of two years.
1 Jacques El-Hage, on 8 July this year you were arraigned before another judge of this Court and pleaded guilty to one count of trafficking in a commercial quantity of methylamphetamine between 1 September 2002 and 31 March 2003. On 6 September 2011 I heard a plea on your behalf.
2 The maximum penalty for the offence to which you have pleaded guilty is 25 years' imprisonment.
3 The circumstances of your offending are as follows.
4 In September 2002 two active and experienced methylamphetamine manufacturers set up a clandestine laboratory for the purpose of manufacturing methylamphetamine at a house in Rye. Their activities came to the attention of police who placed them and the Rye premises under surveillance, and who began intercepting calls on relevant phones. Eventually, on 11 April 2003, the premises were raided. Separately, a number of persons were arrested that day, including you. You were not, however, charged at that time. You were not charged until some years later, after one of those involved in the activities began cooperating with police. You were initially charged with trafficking in a large commercial quantity. Others were also charged, including Tony and Milad Mokbel.
5 The clandestine laboratory at Rye produced methylamphetamine for a number of drug syndicates. You were involved with one of them.
6 What you did was to arrange for the supply to the manufacturers of necessary chemicals, which were provided by others, and then you arranged to deliver to the same people the finished product. You received payment for your involvement in these arrangements in the form of a portion of the finished product. These activities constitute trafficking in methylamphetamine. The relevant threshold for a commercial quantity is 1.5 kilograms. The prosecution characterises your role as "brokering".
7 There is no suggestion that the methylamphetamine you received as payment was for personal use. In intercepted telephone calls you discussed with one of the manufacturers the use of caffeine as a cutting agent for methylamphetamine. When your home was searched after your arrest in April 2003 a clear plastic bag containing caffeine was located. All the relevant activities were fully commercial. You did what you did as part of a commercial drug trafficking enterprise.
8 Some of the others involved in these activities have been convicted and sentenced. The two manufacturers have been dealt with in relation to these activities and a number of other activities. For a variety of reasons, your counsel and the prosecution counsel submitted that no issues of parity arose in relation to them. Milad Mokbel is one of those who has been convicted and sentenced in relation to the Rye laboratory. He also pleaded guilty to one count of trafficking in a commercial quantity. Issues of parity do arise there.
9 I turn to your personal circumstances and background.
10 You were born in Lebanon in 1958. You have two sisters and three brothers. You came to Australia with your father in 1969 at 11 years of age. Your mother and siblings came to Australia approximately a year later. As a young child in Lebanon you suffered from polio and you still have a limp as a result.
11 I was told on the plea that you come from a close and supportive family, none of whom has ever been in trouble with the police.
12 You went to school in Australia at the age of 11, knowing no English. You left school having completed Year 10 and began an apprenticeship which you successfully completed in 1981. You worked for a short time in your trade and then worked in a milk bar and in cafes and restaurants until 1989 when you were arrested in relation to what I was told on the plea was a fraudulent loan scheme involving the State Bank of Victoria.
13 On 24 October 1990 you were convicted of conspiracy to defraud in the County Court at Melbourne and were sentenced to 27 months' imprisonment with a non-parole period of 21 months.
14 On 4 December 1990 you were convicted in the Magistrates' Court at Melbourne on three counts of being in possession of a drug of dependence. You were sentenced to be imprisoned for four months on each count, such sentences to be served concurrently.
15 On the plea I was told that you were released from prison in April 1992.
16 On 2 July 1992 you were convicted of causing damage to property intentionally and being an unlicensed driver. You were sentenced to be released on a community based order. You have one further prior conviction which is of no present relevance. Accordingly, you have no relevant prior convictions after July 1992.
17 In 1993 you met your current wife, Leanne. I was told on the plea that you had been married before. You married Leanne in August 1994.
18 In 1995 your eldest son was born. Material tendered on the plea suggests that your wife Leanne, who was then 25, suffered an episode of post-natal depression. That was the beginning of long standing mental health problems suffered by your wife.
19 In 1997 your younger son was born. Your two sons are now aged 14 and 16 years. Both are at high school.
20 One of the significant issues raised on your plea concerns the circumstances of your family, and in particular your wife and your younger son. The submission made on your behalf is that this is one of those rare cases where the impact of a sentence of imprisonment on the offender's family is itself a factor relevant to the sentence.
21 On the plea a report dated 31 August 2011 by a consultant psychiatrist, Dr Cidoni, in relation to your wife was tendered. He had assessed your wife for the purposes of this hearing at the request of your solicitors on 29 August 2011.
22 According to what your wife told Dr Cidoni your older son was diagnosed with attention deficit hyper activity disorder at the age of 4. That would have been in around 1999. I was told on the plea that whilst your older son has had problems, you believe he has now settled down and he is coping satisfactorily at high school.
23 Assessment reports written by a psychologist named Pam Langford were tendered in relation to your younger son. I was not told the purpose for which those reports had been prepared. I infer from their contents that they were prepared to assist in the management and education of your younger son. Ms Langford's first report states that your younger son was first assessed at the age of 3. That would have been in approximately 2000. He was then diagnosed as having an autism spectrum disorder.
24 In 2002 you and your wife sold a house which you owned in North Dandenong and bought a house in Mt Waverley which you were intending to renovate. In the meantime, your family moved into rental accommodation, first in Glen Waverley and then in North Dandenong. I was told that the process of renovating turned out to be much slower and more expensive than you had anticipated and imposed significant financial burdens on the family. You eventually moved in in 2007 but were forced to sell in 2010.
25 Between September 2002 and March 2003 you committed the offences for which I am now sentencing you. You were arrested, but were not charged, on 11 April 2003. Your home was searched by police.
26 The first assessment by Ms Langford which was tendered on the plea is dated 5 December 2005. In substance, that report revealed that your younger son was mildly intellectually disabled and that he was also suffering from social problems. The report stated that your wife would attend to his needs, that he was having speech therapy at school that might need to be expanded, and that he would need high levels of support for development of social skills.
27 In August 2006 one of the Rye laboratory manufacturers completed a series of statements for the police which implicated you. You were charged on 23 July 2008.
28 In 2006 your wife turned 36 years of age. According to what your wife told Dr Cidoni, from that age until August 2008 she was a heavy user of cocaine and amphetamines.
29 In the latter part of 2008 further assessments by Ms Langford in relation to your younger son were made. Those assessments indicated that his general cognitive functioning was within what was described as the borderline range. The recommendations were that he would benefit from additional tutorial time, that he would benefit from an aide in the classroom, and that he would benefit from a school environment where he was under less pressure socially and academically. On the plea I was told that he had had an aide whilst at primary school, but that now that he is in Year 7 is not able to have an aide any more. I was told his full scale IQ is just above the threshold for an aide. He attends the same high school as his older brother.
30 On 26 July 2008, three days after you were charged in relation to this offending conduct, your wife began being treated by a consultant psychiatrist, Associate Professor Amgad Tanaghow, to whom she had been referred by her general practitioner. A report dated 11 August 2011 by Associate Professor Tanaghow was tendered on the plea.
31 Associate Professor Tanaghow's report says that initially your wife's diagnosis was one of depression but that after careful assessment in hospital it became clear that she had bipolar II disorder. Over the last three years she has been tried on numerous antidepressants, antipsychotics and mood stabilisers. The Associate Professor says that she will continue to receive psychiatric treatment in the form of medication and psychotherapy. He also indicates that one of the significant challenges for her is the mental health of your two sons, and that on 22 April 2009 he referred them to Professor Robert Adler, a child psychiatrist, to assist in managing their difficulties.
32 Between 1 December 2008 and 14 May 2011 your wife was admitted to the Melbourne Clinic on seven occasions. All of those admissions were for significant periods. Four of them were for periods in excess of one month.
33 A contested committal was conducted over 8 days in June 2009. On the plea I was told that you advised the prosecution of your preparedness to plead to the charge to which you have now pleaded guilty in May of this year.
34 In addition to the material to which I have already referred which was tendered on the plea, I also heard oral evidence from Dr Cidoni, and four references and a letter sent to you as a blood donor were tendered.
35 The references are from your nephew and from three friends. They describe you positively, and say you are remorseful.
36 In his written report Dr Cidoni said that he believed your wife would not be able to cope with your imprisonment and that her depression and anxiety would worsen to a level requiring hospitalisation. He expressed the opinion that there would be a significant suicide risk. He also expressed the opinion that there would be a significant detrimental impact on your sons' ability to cope. In his oral evidence he repeated his opinion that a significant deterioration in your wife's condition was likely and that your younger son would have difficulty coping. He expressed the opinion that your wife's mental illness was such that she would have trouble drawing upon support which will be available from your sisters and other family members. In cross-examination he said he had not spoken to Associate Professor Tanaghow. He said that he had read his report. He agreed that otherwise his source of information was your wife herself.
37 There was no evidence from any of the treating psychiatric or psychological professionals as to the likely impact of your incarceration on your wife and sons. I was told on the plea that attempts to obtain what was described as "something more expansive" from Associate Professor Tanaghow had been unsuccessful.[1]
38 It was submitted on your behalf that this was a case where the effect upon your family of your incarceration was so extreme and exceptional as to be a relevant factor in sentencing.[2] It was not submitted that anything less than a sentence requiring a period of immediate incarceration would be appropriate, notwithstanding what were said to be exceptional circumstances of family hardship. In this regard I was told that your extended family were prepared to support your wife and your sons whilst you were in jail.
39 Other matters put in mitigation were the very considerable delay in this case between the offending conduct and sentence, the long period which has elapsed since the last relevant prior conviction, the fact that you had not offended since April 2003, the need for disparity in your favour when compared to the Milad Mokbel sentence, your plea of guilty, and the remorse you have expressed in relation to your offending conduct.
40 In relation to delay, it was submitted on your behalf that, whilst the delay might be explicable by the circumstances of the investigation and factors relating to other offenders, the extent of delay here was a powerful mitigating factor.
41 Milad Mokbel was sentenced to 4 years' imprisonment for his offence relating to the Rye laboratory. Two years of that sentence was cumulated on a sentence of 11 years' imprisonment he was already undergoing and a year was added to his pre-existing non-parole period of 8 years.
42 It was submitted by your counsel that your sentence should be less than his because your role was less significant, the period of your offending was shorter, you have not engaged in subsequent offending whereas he did, and because of your family hardship.
43 In relation to parity, counsel for the prosecution submitted that your offending conduct was not significantly different to that of Milad Mokbel, that the period of offending was almost the same, that he had had no prior convictions, that considerations of totality applied to him that do not apply to you, and that he had offered to plead guilty at an early stage. On the other hand, counsel for the prosecution accepted that Milad Mokbel had engaged in serious further drug related offending after the offending concerning the Rye laboratory, and that he was eventually sentenced in relation to the Rye laboratory as a serious drug offender, which you are not. Overall, the prosecution submitted, your positions are not significantly different.
44 In relation to delay, it was conceded by the prosecution that there was very significant delay here. I was told that the delay was occasioned by the need for further investigation, which explains the delay up until the time that you were charged, and then as a result of factors related to other offenders, in particular Tony Mokbel.
45 Counsel for the prosecution accepted that the circumstances of your family would make prison more burdensome for you and that the effect on you should be taken into account as a mitigating factor. She did not concede that the evidence here established hardship to family members of such an exceptional character as to be itself a factor relevant to the sentencing disposition.
46 Delay is a significant mitigating factor here. The delay is explicable, but the mitigating effect is powerful nevertheless.[3]
47 As to parity, there are considerations going both ways. Three matters are significant. First, Milad Mokbel had no prior convictions, whereas you have received two prior sentences of imprisonment. Secondly, you committed no subsequent offences, whereas he engaged in serious subsequent offending. Finally, your family circumstances are such that they will probably suffer greater hardship than his, although his family will suffer hardship as well, as almost all families who have a member incarcerated do.
48 I have concluded that exceptional circumstances of family hardship are not established here. I do so for these reasons.
(1) Your wife's mental illness is a long standing one, probably going back to 1995, and whilst she suffers severely, mental problems of the kind from which she suffers are not uncommon.
(2) Your younger son also has problems but he is only mildly disabled. He attends a normal high school.
(3) Support is available from your extended family.
(4) Both your wife and your younger son also have professional psychiatric support.
(5) There is no evidence from any of the treating psychiatric or psychological professionals as to the likely impact of your incarceration on your wife and sons. I do not ignore Dr Cidoni's evidence, but it is limited by the fact that he has seen your wife only once and that was in the context of the impending plea hearing, and he has never seen your sons.
49 I fully accept that the circumstances of your family will be a significant concern for you and that that will increase the burden of your imprisonment. That is a mitigating factor. But I do not accept that the circumstances of your family are so exceptional and extreme as to make that a separate relevant sentencing factor.
50 Otherwise, I accept the mitigating factors put on your behalf. I consider that there are reasonable prospects for your rehabilitation. I am cautious because your prior imprisonment did not deter you from becoming involved in this offending.
51 The offence to which you have pleaded guilty is a very serious one. The maximum penalty applicable to it, 25 years' imprisonment, makes that clear. This was commercial drug trafficking for the purpose of making money and that was the nature of your involvement in it. General deterrence and denunciation are very important in such cases. Notwithstanding your remorse and reasonable prospects of your rehabilitation, specific deterrence is also still important here, given your history.
53 For the offence of trafficking in a drug of dependence in a quantity not less than a commercial quantity I sentence you to four years' imprisonment. I fix a non-parole period of two years.
54 Pursuant to s 6AAA of the Sentencing Act I state that if you had not pleaded guilty I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
[2] Reliance was placed on R v NAD [2008] VSCA 192, Markovic v The Queen [2010] VSCA 105 ("Markovic") and DPP v Gerrard [2011] VSCA 200. In this respect I have also had regard to the various decisions referable to family hardship and exceptional circumstances referred to in footnote 4 of my reasons for sentence in R v Cowan [2010] VSC 321.
[3] R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392.
R
El-Hage [2011] VSC 452
(2007) 14 VR 392
Sentenced to four years' imprisonment with a non-parole period of two years for trafficking in a commercial quantity of methylamphetamine. The court refused to find the family circumstances sufficiently exceptional to avoid immediate imprisonment, though it treated family circumstances and delay as mitigating factors. Pursuant to s 6AAA, the judge stated that, absent the plea, the sentence would have been six years with a non-parole period of four years ([48]–[49], [46], [53]–[54]).