R v Fraser [2004] VSCA 147

To six years' imprisonment on Count 3 (being knowingly concerned in the importation of a commercial quantity of cocaine, contrary to s.233B(1)(b) of the Customs Act 1901 (Cth) with a non-parole period of four years, to three years' imprisonment on Count 8 (trafficking in cocaine, contrary to s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981 as in force before 1 January 2002) with a non-parole period of two years, and to three months' imprisonment on Count 10 (possession of ecstasy, contrary to s.73(1) of the last mentioned Act), the sentence in respect of Count 8 to commence that day, 3 December 2001, and the sentence in respect of Count 3 to commence immediately at the expiration of one year from that day, so that the total effective sentence was imprisonment for seven years with a minimum term of five years. The period of 19 days was declared to be reckoned as already served under the sentence. His Honour stated pursuant to s.21E of the Crimes Act 1914 (Cth) that because of the applicant's undertaking to co-operate with law enforcement agencies in the future he had reduced his sentence in respect of Count 3 and that otherwise it would have been seven years' imprisonment with a non-parole period of five years.

6. By notice filed on 14 December 2001 the Applicant sought leave to appeal against sentence on the following grounds:

(b) The order for cumulation resulted in a sentence which is manifestly excessive.

(c) In fixing the sentences the sentencing judge gave insufficient weight to the principle of totality.

2. In fixing the sentences the sentencing judge gave insufficient weight to:

3. (a) The sentencing judge gave insufficient weight to -

(b) The sentencing judge erred in failing to find that the applicant's moral culpability was reduced because of cognitive impairment.

4. (a) The sentencing judge erred in holding that the applicant's status as a solicitor is a matter of aggravation.

(b) The sentencing judge gave too much weight as a matter of aggravation to the applicant's status as a solicitor.

5. (a) The sentencing judge erred in failing to find that the applicant was a person of good character.

(b) The sentencing judge gave too little weight to the applicant's good character.

30. There were three other co-offenders, Werner Paul Roberts, Carl Heinze Urbanec and Andrea Christine Lucia Mohr. The first two pleaded not guilty to one Commonwealth offence each and guilty to State offences and the third pleaded guilty to a single Commonwealth offence, that contained in count 3. Having been convicted of the respective Commonwealth offences, Roberts and Urbanec sought leave to appeal against conviction and against sentence. Their applications were dismissed on 6 February 2004.[1] They have filed in the High Court of Australia applications for special leave to appeal. Mohr sought leave to appeal against sentence but abandoned her application 11 February 2004.

34. The facts of the offending by each of the four co-offenders (other than the applicant's offending the subject of counts 8 and 10), the maximum penalties for the several offences and the course of proceedings in the County Court are set out in my judgment in R. v. Roberts; R. v. Urbanec.[2] There is no point in repeating what is there set out, which I treat as incorporated in these reasons.

37. At this point it is necessary to amplify the statement in the earlier judgment of the applicant's offending the subject of count 3 and to state the essence of his offending the subject of counts 8 and 10. The following matters [3] were agreed in writing between the Crown and the applicant on the plea. During Roberts' visit to the applicant's offices in Lonsdale Street, Melbourne, on 16 August 1999, when he supplied a copy of his itinerary to the applicant, Roberts and the applicant engaged in a discussion concerning the proposed purchase of cocaine in Benin and the importation of it into Australia by Roberts. During the course of that discussion the applicant abetted or counselled the proposed importation in the following ways. Knowing that Roberts was about to leave Australia on a three-week journey via Africa in order to obtain substantial quantities of cocaine for import into Australia, and knowing that such cocaine was likely to become available for him to purchase (for Roberts was the applicant's major supplier of cocaine), the applicant gave advice and assistance to Roberts of a kind which was calculated to render more likely the commission of the offence of importation and to decrease the risk of subsequent detection, as follows:

(a) He warned Roberts that his presence on the same itinerary as Brand was likely to throw suspicion upon him in the event that Brand was caught in possession of the cocaine.

(b) He ensured that Roberts had his correct facsimile and e-mail contact details to enable him to seek advice at any stage of the criminal enterprise.

(c) He held himself out to be a person whose personal and professional skill and experience was such as to render valuable his advice in connection with the prospective importation and he sought to engender confidence both in the quality of his advice and his readiness to give it.

(d) He reassured Roberts that he was available to assist the co-offenders Mohr and Urbanec as well as Roberts in connection with the importation.

(e) After first offering to be at or near the airport upon Roberts' return to Australia, he counselled against such a course on the basis that his attendance would raise an inference that the two of them were engaged in a criminal conspiracy and thus his usefulness might be compromised.

(f) He advised Roberts that upon his return he should clear customs and quickly return to the vicinity of his home before contacting him from a public telephone box some distance from his home using a pre-arranged message.

(g) He advised Roberts against providing Brand with as much as $8,000 by way of reward for her unwitting participation in the import lest the payment of such a sum raised suspicion and increased the risk of detection of Roberts' involvement in criminal conduct. He went on to advise how Roberts could explain innocently the payment of a lesser amount.

(h) He led Roberts to believe that he would provide support to Mohr in his absence overseas. He offered assistance from psychologists and generally with a view to reassuring Roberts that he could confidently leave Mohr during his absence overseas.

Between the time of Roberts' departure for Benin and his arrival back in Australia on 10 September 1999 police electronic and visual surveillance provided evidence of contact between the applicant, Mohr and Urbanec in apparent anticipation of the arrival in Australia of Roberts and Brand and in anticipation that the applicant would be on hand should anything go wrong with the expected importation of cocaine. Having with Brand carried the wall plaques containing cocaine through Customs on their arrival at Sydney Airport on the evening of 10 September 1999 Roberts at about 8 p.m. while near the Budget car rental desk telephoned the applicant on his mobile telephone and said to him, "The eagle has landed", which was intended by him and understood by the applicant to indicate that he, Roberts, had returned to Australia with cocaine and had successfully negotiated his way through Customs and that the applicant's expertise in criminal law and the practice of law enforcement officers was not required at that stage.

43. On 12 September 1999 federal and State police executed search warrants at the applicant's home in St. Kilda, at his city office and on his motor car. Numerous items were seized which bore traces of cocaine and linked him to the use of cocaine.

46. On 18 September 1999 the applicant participated in an interview which was broadcast on radio. During the interview he admitted to purchasing cocaine directly from persons accused of importing cocaine, to having used cocaine for 12 to 13 years, to having spent more than $100,000 on cocaine during the previous year and to having a daily habit in the use of cocaine at the time of his arrest.

49. On 8 November 1999 he participated in a further interview with members of the Australian Federal Police which was recorded and in which he made a number of admissions in relation to his knowledge of and his role in respect of the importation of cocaine on 10 September 1999.

52. The Crown pointed to the following circumstances of aggravation. First, the applicant was at all material times a practising solicitor of many years' experience in the field of criminal law. Secondly, he was well aware that the scheme in which he counselled and became knowingly concerned involved substantial risk that an innocent person, namely Brand, was to be put at risk of being falsely accused and wrongly convicted of a crime carrying a very substantial maximum term of imprisonment.

55. For its part, the Crown acknowledged the following in the agreed statement of facts:

(a) There was no evidence that the applicant was either an architect or instigator of the importation.

(b) There was no evidence that the applicant made any financial investment in the importation scheme or that he expected to participate in any financial profits which sale of the imported cocaine might realise.

(c) The applicant's role in the scheme was limited to being useful rather than essential. It was probable that the importation would have occurred without his encouragement and participation.

(d) The evidence of the applicant's involvement in the importation was limited to that which was revealed by the conversations between himself and Roberts on 16 August 1999 recorded by listening device, by the telephone conversations between himself and Roberts, Mohr and Urbanec recorded pursuant to warrant, by police surveillance of visits made by him to Roberts and Mohr's flat in Elwood and of Roberts' visit to the applicant's office on 16 August 1999 and by admissions made in his interview with police on 8 November 1999.

(e) The applicant co-operated with the police and the Crown in providing a witness statement in anticipation of being called to give evidence in the trial of his co-offenders. (The Crown ultimately decided against calling him in the trial of Roberts and Urbanec.)

(f) The applicant was entitled to substantial credit for his pleas of guilty, his co-operation with police and his promise of future co-operation.

(g) The applicant was at all material times a substantial user of cocaine. His co-offenders were his principal source of supply.

61. Count 8 was constituted by the applicant's selling for some months prior to and during September 1999 within the greater period stated in the count cocaine obtained from his co-offenders and other suppliers to a friend, a psychologist whose services the applicant enlisted on a regular basis in the course of his practice as a solicitor. The applicant sold the cocaine to the psychologist for what he paid for it, $250 to $300 a gram, and generally supplied it in one gram amounts. The Crown agreed that the applicant made no profit from his supply of cocaine. The sentencing judge described this trafficking as "repeated and persistent".

64. Count 10 was constituted by the applicant's possession in his St. Kilda home of two ecstasy tablets found upon his arrest on or in a desk in his study. The judge did not accept the submission that they were not the applicant's and were merely found left behind by somebody else.

68. In the course of the plea counsel for the applicant, besides stating his personal history, tendered a large number of written personal, professional and community character references; two reports from a New Zealand psychiatrist, Dr**.** Grigor; a report from Dr. Ingram, the applicant's doctor for the last three years; a report by Richard Smith, a drug and alcohol clinician; a statement as to the long-term effects of cocaine by James Pitts, who was the general manager of Odyssey House McGrath Foundation and had worked in the field of alcohol and drug addiction for some 24 years; and also some research papers or reports on that question. The reports of Mr. Smith and Dr. Ingram established that the applicant had since his arrest successfully concluded a detoxification program and that his urine tests showed that he was drug-free. Dr. Ingram expressed the view that with continuing rehabilitation the applicant's prognosis for full recovery was excellent. In addition to supplying references or reports, some persons, including in particular Mr. Pitts, Mr. Smith and Dr. Ingram, gave oral evidence. Further, oral evidence was called from persons who had not furnished a reference or a report: besides three additional witnesses as to character, a further witness was Joseph Lamberti, a rehabilitation consultant. Also called was Tina Westra, a detective sergeant in the Australian Federal Police, who had conducted the recorded interview with the applicant on 8 November 1999 and spent two or three days with him in preparing a statement for use against co-offenders which he signed on 4 September 2001. She gave evidence that the applicant not only answered every question he was asked when interviewed and gave a lengthy explanation for his involvement in drugs, but indicated he was prepared to give evidence in support of the statement and that she was satisfied that the statement was substantially correct. A letter which she had herself written was tendered. In it she stated that the applicant had provided additional information, which had not to date led to any successful action, most of the information provided not relating primarily to the importation of narcotics, which was the major focus of the investigations of Australian Federal Police. The applicant was himself called to give evidence that he had previously undertaken to, and been ready to, give evidence in accordance with his statement, and also to undertake on oath to do that if required in the future.

71. The references and evidence as to character showed that the applicant was generous with his time and money in helping persons and in supporting community organisations and that he was a good husband and father. That material was impressive, though several references mentioned only good works done by the applicant subsequently to his arrest. Several of the persons signing character references had noticed a falling off in the applicant's work or behaviour in or shortly before 1999. Those who became aware that he was using cocaine endeavoured to persuade him to desist, but he rejected their advice.

74. It was submitted on the plea for the applicant that he should be sentenced to a term of no more than three years' imprisonment on count 3, that the sentences on the other counts should be concurrent and that he should be released on recognisance after serving six or twelve months in prison. This bold submission was impliedly rejected by the sentence which his Honour imposed as stated at the commencement of these reasons.

78. His Honour dealt with each of the four offenders in one set of sentencing remarks. Some 17½ of the 28 pages were devoted specifically to the applicant. In relation to him, his Honour, having stated the facts concerning count 3, turned to two features of the offending which he regarded as aggravating. The first was the applicant's position and status as a solicitor. He had, the judge said, bound himself by oath to uphold the law and to conduct himself honestly in the legal profession. To behave "in the illegal, dishonourable and disgraceful way" that he had amounted to a grave matter of aggravation. Whilst his Honour believed that the applicant had been acting at the time in his capacity as a solicitor, and his counsel had conceded that, it made little difference, he said, if he was not. His status as a solicitor was relevant in any event, said his Honour, citing _R. v. Wrigh_t (No.2)[4] and R. v. Pangallo[5]. His Honour was prepared to act on the basis that, until the applicant's heavy use of cocaine commenced, which was many years prior to these offences, he practised his profession with integrity and was top of his field. But he rejected as wrong and disappointing to see put the submission that it was difficult for a solicitor practising criminal law to keep clearly in focus the line beyond which he must not go. Certainly in respect of offences such as these a solicitor, of all people, was allowed no leeway.

81. The next aggravating matter noticed by his Honour was that the applicant was well aware that the scheme in which he was knowingly concerned involved the substantial risk that an innocent person might be falsely accused and wrongly convicted of a crime carrying a very substantial maximum term of imprisonment. His Honour recorded that he had been told by the applicant's then counsel that he could not emphasise enough the contrition expressed by the applicant for this aspect of his behaviour, and counsel had gone on to express real remorse for the shame the applicant had brought on his family and profession. But his Honour was bound to say - and I agree - that such contrition and remorse would have been more convincing from the applicant's own mouth on oath in the witness box.

84. His Honour then turned to matters put by way of mitigation. The first was the applicant's use of cocaine. It had been put as relevant in two ways. First, it was contended that the applicant offended because of an addiction and to satisfy that addiction and not for mere greed. Secondly, it was contended that the applicant's use of cocaine at the time of the conversation in his office of 16 August 1999, together with the long term effects of prolonged use, resulted in cognitive impairment and impairment of judgment and caused him to do something which he would not otherwise have done, so that his moral culpability was reduced. His Honour accepted that at all relevant times the applicant had a long-standing and severe addiction to cocaine. As to the first point, his Honour said, the weight to be given to the applicant's addiction depended on all the circumstances, one of which was the nature and magnitude of the enterprise engaged in. Citing R. v. Bernath[6], a case of trafficking, his Honour held applicable the principle that the weight to be given is greatly diminished, often to vanishing point, with operations above street level.

87. As to the second point, his Honour stated that there was evidence that the use of cocaine can impair cognition and judgment. The question was whether, when the applicant committed himself to this importation on 16 August 1999, he did so because his cognitive capacity and judgment were in fact so impaired by cocaine that, in becoming concerned in the importation, he did something he would not otherwise have done, and whether his moral culpability was reduced because of such impairment. His Honour recorded that he had listened to the tape of the relevant conversation and read the transcript of it. He had considered, he stated, the applicant's answers in his recorded interview; the contents of his witness statement; the character evidence given by many witnesses orally and by written reference; the psychiatric, psychological and other expert evidence as to the applicant's personality and genetic make up and the expert evidence in respect of cocaine use and its effect. His Honour expressed himself as not satisfied on the balance of probabilities that at the relevant time the applicant was impaired to the extent necessary to warrant a finding that his moral culpability was reduced. His Honour's reasons for that conclusion cover more than four pages of transcript and it is not feasible to summarise them. I mention only that his Honour noted that the applicant's commitment to the importation occurred during the early part of the conversation of 16 August 1999, before any, or any significant, quantity of cocaine or liquor had been consumed; found that even during the remainder of the conversation there was no significant disinhibition, lack of judgment or cognitive impairment, any evidence to the contrary not being accepted; stated that, even if there were some significant impairment operating at the relevant time, its weight would be slight, primarily because the applicant must have known that he was at serious risk of such impairment and continued to use cocaine none the less; stated that he was satisfied that the applicant was not during the conversation "off his face"; found that the applicant was not an ordinary user of cocaine but must in his practice have come to understand what cocaine can do to a person; but did not treat the applicant's use of it as an aggravating factor, as it might have arguably been.

90. His Honour then diverged to state the facts of counts 8 and 10, in the course of which he stated that he did not accept the defence submission that the trafficking the subject of count 8 would not normally have attracted a term of imprisonment.

93. Turning then to other matters put in mitigation, his Honour stated that the applicant's pleas of guilty and his full and frank admissions in the recorded interview entitled him to substantial credit. His Honour noted that the plea to count 8 was made early but that to count 3 was made at a late stage after the trial had begun, albeit before the jury was empanelled. He accepted that it had followed prolonged negotiations, but he did not treat it as compelling evidence of remorse. It was more likely to have been made in recognition of the strength of a Crown case. But he would take it into account on the issue of remorse. Additionally, it was to the applicant's credit that he took no part in the defence run by Roberts. Further, the applicant was entitled to substantial credit for his past co-operation and promise of future co-operation with the police. By giving and promising co-operation he had put himself in peril and would probably have to serve his sentence in protection with the additional hardship which that entailed.

96. Next, the applicant had lost his career. He had handed in his practising certificate and would almost certainly be struck off the roll of practitioners. To his credit, he already had ambitions, if not plans, to find employment or self-employment in another field, but it would not be easy. Associated with the loss of his career was the financial ruin which had befallen him: he had lost a remunerative practice, his home, his car, his personal effects and so on. To his credit he had paid off heavy debts by working up to recent times in his practice.

99. His Honour turned to the question of good character, saying that it was a matter going in mitigation of sentence under Commonwealth and Victorian legislation. Referring to Ex parte Tziniolis[7] and Melbourne v. The Queen[8], his Honour stated that character, as distinct from reputation, related to the quality of a person, whilst reputation referred to the public estimation or repute of a person irrespective of the inherent moral qualities of that person. Good character had considerably less significance in serious offences such as drug cases like the present, his Honour said, citing R. v. Smith[9] and R. v. Leroy[10]. The applicant was a person with no prior convictions and, according to a large number of witnesses, had a very good reputation. Moreover he had given freely and without remuneration over a long period much of his time, effort and money to pro bono work in the law, to sporting, charitable and other deserving institutions and causes and to individuals and had thus made significant contributions to the community. His Honour took all those matters into account in his favour. He took into account that, because of the offending, the applicant would lose his good reputation, though that reputation might have been undeserved. Save for the foregoing, his Honour said, so far as character went, for the last 12 to 13 years, or at least since the applicant became a heavy cocaine user, he had not had a good character at all. On his own admissions, for those years he had been breaking the law with increasing frequency by possessing and using cocaine. He, a solicitor, had been doing this, day by day for years, and had for the months preceding 12 September 1999 been trafficking in cocaine. He was not a person who had led a blameless, law-abiding life and who had made one silly or unfortunate mistake, as in R. v. Okutgen[11].

102. The next matter was the question of the applicant's rehabilitation. Since his arrest he had promptly sought assistance to overcome his addiction and, not without pain and effort, had succeeded in doing so. He had given lectures and in other ways endeavoured to warn others of the risks of cocaine use and to deter them from it. His rehabilitation was well under way. Counsel had also submitted that the applicant was now contrite, humble and remorseful. Whilst he would have been more convinced if he had heard it from the applicant's own lips, his Honour was prepared to accept that this was so to some extent and he took it into account, but in the circumstances did not attach much weight to it. He also bore in mind that the applicant had had the prospect of this sentence hanging over his head for two years.

105. His Honour did not think that strict parity of sentencing was required. What each of the offenders did was different, there were different personal factors applicable to each and there were different discounts or credits applicable to some and not others and so on. But his Honour had borne in mind when determining the sentence of each offender the sentence he considered appropriate for the others.

108. In arriving at the appropriate sentences he had considered all the circumstances, including the matters and principles set out in s.16A of the Crimes Act 1914 (Cth) and s.5 of the Sentencing Act 1991. In respect of the Commonwealth offence he had taken into account s.16G of the Crimes Act 1914[12]. He had borne in mind, amongst other things, the principles of proportionality and totality.

111. His Honour then passed sentence on each of the four offenders. The sentence passed on the applicant has been set out at the commencement of these reasons. In relation to the applicant he stated that in all the circumstances, including the fact that the sources of the cocaine trafficked included suppliers other than the co-accused, the quantities trafficked and the frequency and duration of the trafficking, his status as a solicitor and the absence of close connection between the trafficking and the importation, it was proper that one year of the sentence in respect of count 8 be served cumulatively upon the sentence on count 3.

115. It is now possible to consider the grounds of proposed appeal. Grounds 2, 3, 4(b) and 5(b) were argued as particulars of the limb of ground 1 alleging manifest excessiveness.[13] It is appropriate to take first the grounds alleging specific error.

119. Although most of the authorities[14] for the proposition that an offender's status as a member of the legal profession is an aggravating factor concern offences of dishonesty or offences affecting the administration of justice, the correctness of the proposition that that status is an aggravating factor cannot be doubted. Nor was the proposition challenged on appeal. The submission was, rather, that the application of the principle by the sentencing judge in this case was erroneous because it was the applicant's status as a solicitor and the provision of advice which established the elements of the offence and it would, therefore, amount to "double counting" if the sentencing court took the same factor into account as a matter of aggravation. It was conceded, as it had to be, that, although late in the plea he had attempted to eliminate or moderate the aggravation, counsel below had accepted that his client's status as a solicitor was an aggravating factor.[15]

This was said to be misconceived in the particular circumstances. It was also conceded that the applicant's status as a solicitor might aggravate count 8. But as to count 3 counsel asked rhetorically: If the applicant had not been a solicitor could he have been convicted? In my view, he could have been, for his being a solicitor was no part of the actus reus of the offence of being knowingly concerned in the importation. A person who was not a solicitor could have given and offered the advice and assistance which the applicant offered, (though the advice and assistance would not have been so comforting). Put another way, if the applicant's status as a solicitor were disregarded, one would be sentencing without all the facts and the criminality of the applicant would be seriously understated. Accordingly, there was no double counting and the ground fails.[16]

125. It was submitted for the applicant that the approach taken by his Honour in his sentencing remarks summarised in the last third of paragraph [23] above[17] was contrary to the reasoning of the three majority justices of the High Court (Gummow, J. and Hayne, J. dissenting) in Ryan v. The Queen[18] and was therefore erroneous. In that case the High Court held by a majority that an offender, convicted of a number of sexual offences against young boys spanning a long period of time, who had done many good works, was entitled to "some leniency" because of his "otherwise good character".

128. It is first to be noted that his Honour stated, correctly in my opinion, that good character had considerably less significance in serious offences such as drug cases. It is also to be noted that nevertheless his Honour not only found that the applicant had no prior convictions, had, according to a large number of witnesses, a very good reputation and had made significant contributions to the community through the good works which he described in general terms, but also took those matters into account in the applicant's favour. It was said that his Honour erred in the impugned portion of his remarks, in which he held that at least since the applicant became a heavy cocaine user he had not had a good character at all, because he, a solicitor, had been breaking the law with increasing frequency by possessing and using cocaine and more recently, for some months preceding 12 September 1999, by trafficking in cocaine. Now, the approach which McHugh, J. in Ryan[19] stated was to be taken by a sentencer to a prisoner's claim to be of otherwise good character, and which seems to have been agreed in by Kirby, J. and Callinan, J., is a two-stage one. First, the sentencer must determine whether the prisoner is of otherwise good character and in doing so must not consider the offences for which the prisoner is being sentenced. Secondly, if that is answered affirmatively, the sentencer must take that fact into account, although the weight to be given to it will vary according to the circumstances of the case. In my opinion, whilst his Honour was entitled to have regard to the applicant's use and possession of cocaine,[20] he was not entitled to have regard to his more recent trafficking in it, because that constituted an offence for which he stood before him for sentencing. But, since his Honour was entitled to rely on the applicant's use and possession of cocaine over many years, his conclusion that he was not otherwise of good character was correct. Therefore, his Honour's error was immaterial. This is especially so having regard to the relatively minor role that good character could play in the sentencing for these offences.

132. Mr. Grace began his submissions for the applicant by stating that essential to his argument was a consideration of the applicant's role in the crime. He pointed out that the applicant came on the scene late. Roberts had already planned the trip and purchased tickets and was leaving imminently. So what occurred on 16 August 1999 was not going to affect his travelling to and purchasing in Benin and his arrival back with cocaine. Count 8 concerned cocaine purchased from Roberts, Mohr and Urbanec and trafficked for a few months immediately prior to the applicant's arrest for no profit in one gram lots in circumstances where the psychologist purchaser reimbursed the applicant his cost. There was no question of pleading not guilty to that count. The same applied to count 10. That had been explained by the applicant's counsel below. His Honour did not accept that. It did not make much difference.

135. It was submitted that the sentences imposed in respect of each count were manifestly excessive because his Honour failed to give appropriate weight to the following circumstances of the offending and personal circumstances of the applicant. With regard to the circumstances of the offending, in the case of count 3 reliance was placed on the limited and agreed non-essential role played by the applicant; the inevitability of the importation occurring regardless of the applicant's participation, the timing already referred to showing that his proffered advice was peripheral; the fact that he made no investment in the importation and expected no financial reward; and that he was neither the architect nor the instigator of the importation.[21]

138. The characterisation of count 8 on behalf of the applicant has already been stated.[22] It was submitted that, were it not for other charges on the presentment, this count (and count 10) would appropriately have been resolved in the Magistrates' Court because of the absence of profit. It is convenient to say at this stage that this was strongly contested by counsel for the respondent on the ground that trafficking by a solicitor was not appropriate for determination in that court. I think that correct, particularly when the other factors on which his Honour relied in deciding to cumulate one year of the sentence on this count are added. But the correctness of Mr. Grace's assertion is not really in issue. Its point was that the offending was, it was said, relatively minor.

141. As to count 10, reference was made to the version of the offending which had been stated from the Bar table by counsel below and rejected by the judge, namely that the tablets had been left by a guest or guests and the applicant had put them in a drawer and done nothing about them. Counsel had said to the sentencing judge that the applicant had given the same account to the police, and that account had not been disputed by the Crown. Further, there was no evidence to suggest that the applicant was a user of ecstasy. The judge had not given reasons for rejecting the defence version. It is again convenient at this point to say that counsel for the respondent took issue with the submission. He pointed out that no explanation was given for what he called the "surprising" failure of the applicant to give evidence on the issue. (I have already mentioned that he was called on the question of future co-operation.) No particulars as to the identity or likely identity of the alleged true owner or owners were provided and the Crown had no means of testing the contention. He also stated, correctly, that the onus of proof was on the applicant. His Honour, he submitted, was not bound to accept the statement by the Bar table even though not formally put in issue by the Crown, citing R. v. Bernath[23]. The point is a minor one in the overall scheme of things and there is indeed no ground challenging his Honour's refusal to find the fact asserted. Be that as it may, I am of the opinion that the respondent's submissions are correct. I add the following comments to those submissions. The significance for sentencing judges of evidence, or the absence of evidence, by offenders on matters directly within their knowledge does not seem to be well understood amongst practitioners. Further, it is to be remembered that the offence in question was possession, not use, of ecstasy. Finally, having regard to the minor nature of the point and to what I should have thought was the fairly obvious ground of rejection, his Honour was not bound to give reasons for his rejection of the version asserted by the Bar table.

144. The circumstances of the applicant that were relied on for him were his pleas of guilty[24] and implied disavowal of the defence run by Roberts at trial; his full and frank admissions, supplemented by his past co-operation and sworn offer of future co-operation; his remorse, said to be evidenced by the foregoing matters and the evidence of character witnesses; his rehabilitation, evidenced by the same foregoing matters, by the expert and lay testimony as to his abstinence from drugs since his arrest, and by his change in lifestyle and his contributions to society in the two year period between his arrest and sentence; the substantial body of evidence as to his otherwise previous good character (notwithstanding his cocaine addiction), including numerous accounts of his contributions to sporting and charitable causes and his pro bono work; his cocaine addiction and what was claimed to be his consequent cognitive impairment; the absence of previous criminal history; the punishment suffered as a result of the loss of his position as a solicitor, including the disgrace and embarrassment of the proceeding; and the unlikelihood of his re-offending and his prospects for rehabilitation.

147. It was acknowledged that his Honour had referred to most of the circumstances of the offence and matters in mitigation, but it was contended that the sentences imposed were excessive on their face and did not appropriately reflect the criminality of the applicant's conduct. It was submitted that the "sheer magnitude" of the sentence itself as compared with those imposed on Roberts and Urbanec showed that it was manifestly excessive. This was especially so after taking into account all the mitigating factors.

150. It is necessary to comment on some of the personal circumstances relied on as mitigating, either to record an elaboration by the applicant's counsel of a factor or some criticism or moderation of it. As to co-operation, whilst the promised co-operation clearly related to any possible re-trial of Roberts or Urbanec and thus to Commonwealth offences, it was said that the past co-operation was not reflected in the sentence for the State trafficking offence (count 8). The respondent contended that it was taken into account "in the round". Section 5(2AB) of the Sentencing Act was not, of course, applicable to the past co-operation. Whether it was sufficiently taken into account on count 8 will form part of my consideration of whether the sentence on that count is manifestly excessive.

153. With regard to remorse, it was submitted for the applicant that his Honour erred by treating the plea as a bare one and by inferring from the lack of sworn evidence by the applicant of his remorse that less weight should attach to that substantial mitigating factor. Criticism was directed during argument to what his Honour said about remorse as summarised in paragraph [21] above. It was said that his Honour was merging factors relevant to count 3 and factors relevant to count 8. But, as the Bench pointed out during argument, his Honour separated the two counts clearly when considering the effect of the pleas to them respectively and that when he said that he did not treat "it" as compelling evidence of remorse he was referring only to the late plea to count 3. His Honour was, I consider, well entitled to take the view he expressed for the reasons he gave. It is to be noted that he did not say that the plea had no weight at all for this purpose, but rather that he would take it into account. His Honour returned to remorse when considering rehabilitation, as summarised in paragraph [ 24] above. Again, I consider that his Honour was entitled to take the view he there expressed for the reason he gave.

156. It was submitted that there were two aspects to the applicant's rehabilitation: first, from drug addiction and, secondly, from life "on the fringe", using cocaine, to a law-abiding person, of which it was said many character witnesses gave cogent evidence.

159. On the question of the applicant's cocaine addiction and the asserted cognitive impairment, it was submitted that R. v. Bernath, on which his Honour, as set out in paragraph [18] above, had relied, was distinguishable because the applicant's role was not essential to the inevitable importation and because his involvement might be characterised as an attempt to ingratiate himself with his cocaine supplier. But the non-essentiality of the applicant's role does not alter the nature and magnitude of the enterprise to which he lent his support knowingly. It may be - I need express no final view - that the applicant's involvement can be characterised as submitted, but the proposition for which his Honour relied on Bernath is not thereby rendered inapplicable. To deal directly with ground 3(b) as worded, I should add that, although, as mentioned in paragraph [14], several persons did notice a falling off in the applicant's work or behaviour, his Honour was entitled to come, after his careful and detailed consideration of the matter, to the conclusion that he was not satisfied on the balance of probabilities that at the relevant time the applicant's cognition was impaired to the extent necessary to warrant a finding that his moral culpability was reduced.

162. Having enumerated the factors particularly relied on for the applicant and discussed some of them in detail, I turn to the ultimate question whether any of the several components of the overall sentence is manifestly excessive. The answer to that question is a conclusion[25] which does not admit of much argument. It is trite that, leaving aside mandatory sentences, sentencing is a discretionary exercise and there is no one correct sentence but, rather, there is a range of sentences open to a sentencing judge in the exercise of a sound discretionary determination. Here, in my opinion, each individual sentence was within that range and therefore not manifestly excessive. I summarise my essential reasons for that conclusion.

165. With regard to count 3, the offence related to a commercial quantity of cocaine. The maximum custodial penalty was imprisonment for life. The applicant was knowingly concerned in an importation of 3.7 kilograms of pure cocaine having a street value of between $1.35m to $2.7m or, if sold in bulk, a value of between $970,000 and $1.36m approximately. In short, the applicant lent himself to or associated himself with a very serious offence. Moreover, he was a practising solicitor, a grave matter of aggravation. It is true that Mohr's heroin addiction was taken into account by his Honour when sentencing her, whereas the applicant's cocaine addiction was not. But her addiction was much more serious, manifesting itself both psychologically and physically. Its physical effect upon her was visible. If the maximum custodial penalty for the offence the subject of count 3 were imprisonment for 25 years, imprisonment for six years would be only approximately one-quarter of the maximum. But the maximum is greater - imprisonment for life. For the foregoing reasons, notwithstanding the mitigatory matters enumerated, so far as accepted by me, including the undertaking for future co-operation, I consider that the sentence of six years on count 3 is within the range that was open to his Honour.

168. Although his predecessor had submitted below that count 8 by itself would not have attracted a prison term, counsel for the applicant before us did not deny that the offence the subject of count 8 warranted imprisonment, but submitted that a term of three years with a non-parole of two years was manifestly too high in light of the mitigatory factors already mentioned, together with the fact that, somewhat like the applicant in R. v. Hansen[26], the applicant was not a seller to all comers. However, though it was to one person only and resulted in no profit, this trafficking extended over some months and the applicant had no control over what his purchaser did with the cocaine trafficked. Moreover, a particular aggravating feature was that the person to whom he, a solicitor (itself an aggravating feature, as discussed), trafficked was a fellow professional practising in the criminal justice system and one frequently retained by the applicant for the purpose of preparation of reports on which courts were asked to rely and in respect of which the author might be beholden to his supplier of cocaine. Again, three years is only one-fifth of the maximum applicable. A particular argument that the sentence on count 8 was manifestly excessive was, as I understand it, advanced orally for the applicant by reference to the sentences of one year's imprisonment for cocaine trafficking passed on Roberts and Urbanec. When questioned about this, counsel stated that it was difficult to call it a parity argument because they were not co-accused on the same offences. Rather, he was referring to the sentences on Roberts and Urbanec in order to test whether that imposed on the applicant for cocaine trafficking was within the range. Counsel for the respondent did not require an amendment of the grounds to be obtained. The short answer to the reliance on the sentences passed on Roberts and Urbanec is that their offending was not comparable to that of the applicant. For a start, the periods of trafficking were much shorter, a week in the case of Roberts and a little over three weeks in the case of Urbanec. Further, the applicant was a solicitor and was trafficking to a fellow professional frequently retained by him as already explained in more detail. For these reasons, I consider that the sentence of three years with a non-parole period of two years was within the range open to the sentencing judge.

171. As regards count 10, having regard to the quantity of ecstasy involved, it might be said that a sentence of three months' imprisonment was somewhat severe where (since no finding was made that it was possessed for the purpose of trafficking) the maximum custodial penalty was imprisonment for one year. I am not, however, persuaded that it was outside the range available to his Honour in the particular circumstances, including the fact that the applicant was a solicitor. I would add that, even if I had been so persuaded and if the whole sentencing discretion were re-opened, I would not have thought fit to pass a different sentence on any other count or to make any different order as to cumulation or the non-parole period.

174. I turn to the cumulation of one year of the sentence on count 8 upon the sentence on count 3 effected by the direction pursuant to s.19(3) of the Crimes Act 1914 as to the commencement of the latter sentence. It was submitted for the applicant that the direction resulted in a total effective sentence which was manifestly excessive and contrary to the principle of totality. Further, in the applicant's written outline it was "not conceded" that any cumulation was appropriate in the circumstances of this case. In oral argument it was positively submitted that it was not possible to differentiate the applicant's cocaine trafficking offence from that of Urbanec or indeed that of Roberts, the sentence on each of whom was concurrent with the sentence for the Commonwealth offence. Thus an anterior question as to any cumulation at all was raised. In each case, it was said, the trafficking consisted of, or at least (with the applicant and Urbanec) included, trafficking before Roberts' departure abroad. Moreover, the applicant was not making a profit. His Honour gave reasons, summarised in paragraph [27] above, for cumulating one year of the sentence on count 8 upon the sentence on count 3. In my opinion those reasons are sound and answer the present submission. But I make some additional comments. In the case of Urbanec (on whose sentence counsel for the applicant placed most reliance for present purposes), there is force in the submission of counsel for the respondent that there was a link between his trafficking and count 3 which militated against cumulation, in that Urbanec's role was "to keep the home fires burning" while Roberts was overseas. In the case of Roberts the importation was in part to enable him to continue his trafficking to the applicant. Moreover, considerations of totality might work against cumulation. Accordingly, cumulation was appropriate in the applicant's case.

177. The question then is whether the cumulation in fact directed led to the infringement of the totality principle or made the total effective sentence manifestly excessive. In my opinion, having regard to all the circumstances I have discussed and in particular those that I have referred to as justifying the sentences on count 3 and count 8, it does neither of those things. The total effective sentence was a fair reflex of the seriousness of the offending and the criminality and moral culpability of the applicant.

180. In support, as I understand it, of the contention that the non-parole period of five years on count 3 was manifestly excessive two particular submissions were made besides reliance on the figures themselves and the features of the case already considered. First, it was said that the sentencing judge did not make a finding in response to the submission that specific deterrence did not require much emphasis in any disposition imposed, whereas in fact the evidence compelled such a finding, and such a finding should have been reflected in a greater disparity between the head sentence and the non-parole period. Secondly, the applicant's good prospects of rehabilitation warranted, it was submitted, the fixing of a shorter than usual non-parole period. In that regard reference was made to Director of Public Prosecutions v. Bulfin[27] and R. v. Yates[28]. But, as regards the first submission, his Honour had stated that the applicant's rehabilitation was at the time of sentencing "well under way". That necessarily had some effect on specific deterrence. A judge does not invariably have to deal in terms with every submission, especially where the plea was as long as this one. That his Honour did not expressly respond to the submission concerning specific deterrence does not, in light of his statement about rehabilitation, with such an experienced judge suggest that he gave undue emphasis to specific deterrence, particularly in arriving at the non-parole period. His Honour certainly did not state (as he did in the cases of Roberts and Urbanec respectively) that specific deterrence

was to be a prominent, or a relevant, sentencing purpose.[29] Secondly, the disparity between the head sentence and the non-parole period, whilst it might have been greater, was within his Honour's discretion. That he was well aware of the principles applicable to the fixing of a non-parole period is shown by his reference to R. v. Krasnov and Shlakt[30]. This is not a case where his Honour was bound to consider that rehabilitation had been completely achieved and was secure. The applicant did not commence rehabilitation until after he his arrest. Until then he had over many years used and possessed cocaine illegally without seeking help, which from his professional practice he knew was available, or otherwise attempting rehabilitation. Indeed he had ignored the advice or suggestions of friends and colleagues to desist from its use. For these reasons, in my opinion, the non-parole period was not manifestly excessive.

185. In my opinion the application should be dismissed.

190. I have had the benefit of reading the draft reasons for judgment of Batt, J.A. and agree that, for the reasons given by his Honour, the application for leave to appeal against sentence should be dismissed.

195. I agree that, for the reasons advanced by Batt, J.A., this application for leave to appeal against sentence should be dismissed.

[1] R. v. Roberts; R. v. Urbanec [2004] VSCA 1.

[2] The following paras are of particular relevance to the applicant: [3]-[5], [8], [9], [18], [19], [22], [136] and [138].

[3] Set out in this para. and paras.[6]-[8] and [10]. Para.[9] was also in the agreement.

[4] [1968] VicRp 17; [1968] V.R. 174.

[5] (1991) 56 A.Crim.R. 441.

[6] [1997] 1 V.R. 271.

[7] (1966) 67 S.R. (N.S.W.) 448 at 475; [1967] 1 N.S.W.R. 357 at 377.

[8] [1999] HCA 32; (1999) 198 C.L.R. 1 at 15.

[9] (1982) 7 A.Crim.R. 437.

[10] (1984) 13 A.Crim.R. 469.

[11] (1982) 8 A.Crim.R. 262 at 265-6.

[13] The failure alleged in ground 1(c) to give sufficient weight to the principle of totality was argued as a particular of or reason for the manifest excessiveness as well, I think, as independently. Ground 3(b) reads as an allegation of specific error, but was argued, at least principally, as a particular of ground 1.

[14] Such as South Australian Police v. John (1995) 79 A.Crim.R. 510 at 511 and R. v. Wright (No.2) [1968] VicRp 17; [1968] V.R. 174 at 181.

[15] Counsel for the respondent stressed that the aggravating nature of the applicant's status was indeed part of the agreed facts. Compare fn.[ above.

16] I note that counsel for the respondent went so far as to submit that the applicant's status made his offending more serious than that of Urbanec before mitigating factors were taken into account.

[17] Commencing, "Save for the foregoing...".

[18] (2001) 206 C.L.R. 267 at 278-9, para.[36], per McHugh, J., 300-301, at para.[112], per Kirby, J., and 319, at para.[178], per Callinan, J. Although this case had been decided some five months before the plea was heard, it was not drawn to his Honour's attention by counsel.

[19] At 277, para.[32], and 278-9, para.[36].

[20] It was submitted that, if the applicant had been charged with 12 years' use and possession of cocaine, his Honour clearly would not have been entitled to take that offending into account on the question of whether he was otherwise of good character and so, it was argued, "through benevolence" his Honour could not do that in this case. It is true that, had the applicant been so charged, that offending could not have been taken into account, but the conclusion does not follow, for the submission overlooks the fact that the applicant would then have been directly sentenced for the 12 years' use and possession of cocaine, so that he would have been worse off.

[21] Reference was also made to the sentences passed on the corrupt police members Rosenes and Paton as "helping to show the range". (A parity argument was disavowed.) But the offending and the personal factors are simply so different as to make those sentences irrelevant. It is significant that no Commonwealth offence carrying life imprisonment was involved.

[22] Again, there was reference to the sentence passed on the applicant's purchaser, but again the offences were so different as to make the sentence irrelevant.

[23] [1997] 1 V.R. 271 at 276, first para.

[24] Reliance was placed on propositions 1 and 6-10 in R. v. Duncan [1998] 3 V.R. 208 at 214-215.

[25] Dinsdale v. The Queen [2000] HCA 54; (2000) 202 C.L.R. 321 at 325-326.

[26] Unreported, Court of Criminal Appeal, 15 February 1980 at p.4 per Starke, J., Anderson, J. agreeing and Fullagar, J. dissenting.

[27] [1998] 4 V.R. 114 at 130.

[28] (1998) 99 A.Crim.R. 483 at 488-9.

[29] The only other reference to deterrence appears to be early in his Honour's remarks when, after stating the facts of the offences by all four offenders, he said, "Deterrence, especially general deterrence, is probably the most important sentencing purpose." That was a general statement relating to the offences before his Honour turned to the offenders individually.

[30] (1995) 82 A.Crim.R. 92.