R v McCulloch [2009] VSCA 34

1 On 16 September 2005, the applicant was found guilty by the jury empanelled in his trial in the County Court at Melbourne of trafficking a commercial quantity of a drug of dependence, tetrahydrocannabinol (count 1), and a commercial quantity drug, methylamphetamine (count 2). He had two prior convictions, the first, in 1983, for handling stolen goods and the second, in 1987, of trafficking a drug of dependence (heroin).[1]

2 After hearing a plea in mitigation of penalty, the judge, on 28 October 2005, imposed a term of 9 years' imprisonment on each count, directing that 5 years of that on count 2 was to be served cumulatively, thereby creating a total effective sentence of 14 years' imprisonment. A non-parole period of 11 years was fixed.[2]

3 A co-offender, Allan John Cotter, was found not guilty of these offences, but was convicted of trafficking simpliciter[3] in both substances. The total effective sentence imposed upon him was imprisonment for 3 years and 6 months in respect of which a non-parole period of 1 year and 6 months was fixed.

4 On 9 October 2001, at the County Court at Melbourne, Mario Stumpo, who was also involved in the activities giving rise to these counts, pleaded guilty to one count of trafficking a commercial quantity of tetrahydrocannabinol (count 1) and one count of a commercial quantity of trafficking methylamphetamine (count 2). A second presentment in his case related to an unconnected trafficking offence. For his involvement in the conduct with which we are concerned, Stumpo was sentenced to a term of imprisonment of 5 years on count 1 and, 4 years on count 2 of which 1 year was to be served cumulatively. On the second presentment, he was sentenced to 4 years' imprisonment, 2 years of which was to be served cumulatively upon the sentences imposed for the other offences, making a total effective period of incarceration of 8 years, with a non parole period of 5 years and 6 months.

5 The applicant now seeks leave to appeal against both his conviction and the sentences imposed in consequence.

The application for leave to appeal against conviction

6 In the applicant's Amended Full Statement of Grounds it is asserted that -

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

(a) each count on the presentment is bad for duplicity;

(b) none of the separate transactions alleged, each of which amounted to a separate allegation of trafficking simpliciter, involved the applicable commercial quantity of the drug in question;

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

(d) it is impermissible to aggregate the separate transactions of trafficking simpliciter in order to establish the quantity and/or mens rea elements of trafficking in a commercial quantity of a drug of dependence.

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

Ground 2A: The learned judge erred (i) in leaving the applicant's liability on the basis of 'joint enterprise' (i.e. concert) given that he was absent from the transactions forming the basis for the counts on the presentment, (ii) in failing instead to give directions on counselling or procuring (which do not require presence) and (iii) in any event in failing to direct that the prosecution had to prove:

• (a) that, from the first transaction to the last, Mr Stumpo was engaged in the trade or business of trafficking in a commercial quantity of the drug in question and that, from the first transaction to the last, he intended, knew or believed that the total of the transactions would exceed the applicable commercial quantity for each drug; and
• (b) that the applicant intentionally counselled or procured Mr Stumpo to engage in that trade or business intending, knowing or believing, from the first transaction to the last, that Mr Stumpo had the intention, knowledge or belief that the total of the transactions would exceed the applicable commercial quantity for each drug.

Ground 3: The learned trial judge erred in failing to leave as alternative verdicts the offences of trafficking simpliciter.[4]

Ground 9: The learned trial judge erred in failing to direct on how the evidence of the seizure of tetrahydrocannabinol at Blair Street on 28th March 2001 might be used in proof of Count 1.

The application for leave to appeal against sentence

7 In support of this application it is contended that -

Ground 1: The individual sentences, the extent of the order for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive, in breach of totality and crushing, particularly in view of:

(a) the delay in bringing the matter to trial;

(b) the applicant's age;

(c) his personal circumstances.

Ground 2: The learned judged erred:

(a) in passing the same sentence on counts 1 and 2; and

(b) in failing to pay any regard to the fact that the amount of Tetrahydrocannabinol the subject of count 1 was about two-and-a-half times the applicable commercial quantity and that the amount of Methylamphetamine the subject of count 2 was only just over the applicable "mixed" commercial quantity.

Ground 3: The learned judge erred in failing to pay any regard to:

(a) the potential harm to the community of the drugs in question;

(b) the fact that none of the dugs in question had any potential for harm as they were sold to police only.

Ground 4: The learned judge erred:

(a) in holding that there was a 'need to pay greater attention to cumulation on Count 2 because of the provisions of the Sentencing Act';

(b) in failing adequately or at all to moderate the extent of cumulation to recognise that the two offences were committed during the same period and to comply with totality.

Ground 5: The learned judge erred:

(a) in finding that part of the delay in bringing the matter to trial had been brought about through the applicant's actions;

(b) in giving insufficient weight to delay as a result of that finding.[5]

8 H was a friend of the applicant and, on 12 December 2000, they met accidentally in a café in the city. The applicant introduced H to Cotter. In the course of their conversation, H requested the applicant for a loan and received the response that, if he wanted money, he should sell drugs. H was concerned about this suggestion and approached a police member that he knew. In the resultant investigation, which was conducted under the code name Operation Ski, it was arranged that he would speak again with the applicant and Cotter whilst wearing a recording device to monitor what transpired.

9 According to the summary of evidence with which the Court has been provided -

On 15 December 2000 and 18 December 2000, [H] met with Cotter and discussed possible transactions. This was followed with further discussions concerning the purchase of amphetamine. He again met with the applicant, on 27 December 2000, and received money to enable him to obtain a phone, and on 11 January 2001, they discussed possible drug dealing.

Between 11 January and 25 January 2001 there were numerous phone-calls between [H], the applicant and Cotter.

On 25 January 2001 [H] met Stumpo pursuant to the [a]pplicant's instructions. [H] received 1016 grams of a substance containing tetrahydrocannabinol (hashish).

On 31 January 2001 [H] introduced Cotter to Patrick Austin ... Pat was an undercover police officer pretending to be [H's] drug trafficking partner. [H] and Pat paid Cotter $3,500 for the hashish purchased on 25 January. [H] met with Stumpo later that day and received 981 grams of hashish and 13.8 grams of methylamphetamine (30% pure).

On 7 February 2001 [H] met with Stumpo and received 1011.8 grams of hashish and 0.02 grams of methlamphetamine (20% pure).

On 13 February 2001 [H] and Pat met with Stumpo. Pat paid Stumpo $3,500 for the hashish received on 9 February. Pat returned the amphetamines received on 9 February (minus the amount analysed by Forensic Services) and claimed it was poor in quality. Later that day Pat and [H] met with Stumpo and received 1887.4 grams of hashish.

On 22 February 2001 [H] and Pat met with Stumpo. Pat paid Stumpo $7,000 for the hashish received on 13 February 2001 and received another 1032.1 grams of hashish. Later that day police observed the [a]pplicant handing Stumpo a rectangular package wrapped in brown paper. Later again that day Pat met with Stumpo and received 977.6 grams of hashish.

On 28 February 2001 police observed Stumpo briefly attend his brother Guiseppe Stumpo's residence. Later that day Pat met with Stumpo. Pat paid Stumpo $7,000 for the hashish received on 22 February and received another 2028.8 grams of hashish.

On 6 March 2001 [H] received a phone call from the [a]pplicant. They arranged to meet on Hardware Lane. [H] went there and met with Mark Smith ... Smith and the [a]pplicant were friends. They went to the City Baths. Smith said they would meet the [a]pplicant there. They met another person unknown to [H] there. Smith patted [H] on the back looking for a recording device. The recording device was concealed elsewhere. [H] tried to convince Smith that there was nothing untoward about his relationship with Pat.

On 8 March 2001 Pat met Stumpo and paid him $7,000 for the hashish received on 28 February. Pat received 1962.3 grams of hashish and 2 tablets of what was purportedly ecstasy which weighed 0.6 of a gram and contained methylamphetamine (2.5% pure).

On 14 March 2001 Pat met Stumpo and paid him $7,000 for the hashish received on 8 March. Later that day Pat met Stumpo. Pat paid Stumpo $4,000 and received 500 tablets of what was purportedly ecstasy weighing 146.6 grams and containing methylamphetamine (1.5% pure). That night police observed Stumpo having dinner with the [a]pplicant.

On 20 March 2001 Pat met Stumpo and received 750 tablets of what was purportedly ecstasy weighing 219.4 grams and containing methylamphetamine (2% purity). Pat paid Stumpo $11,000: $3,750 for the tablets received on 14 March; and $7,500 for the tablets purchased on this occasion.

On 23 March 2001 Pat met Stumpo and paid him $18,750; $3,750 for the balance owing on the tablets purchased on 20 March; and $15,000 as part payment for the tablets he was about to receive. Stumpo gave him 1909 tablets of what was purportedly ecstasy weighing 549.2 grams and containing methyamphetamine (2.5% pure).

On 28 March 2001 Pat met with Stumpo and gave him $59,000 in a Nokia phone box. In exchange Pat received 1993 tablets of what was purportedly extasy weighing 519.6 grams and containing methylamphetamine (2.5% pure) and 3983.2 grams of hashish. Later police observed the [a]pplicant, Stumpo and Cotter leaving the [a]pplicant's residence together.

A short time later on 28 March 2008, the [a]pplicant, Cotter and Stumpo were arrested. The [a]pplicant was found to be in possession of $340 and Stumpo was found to be in possession of $200. That money was later matched to notes used by Pat to pay Stumpo for the tablets and hashish purchased earlier that day. The [a]pplicant was also found in possession of a piece of paper bearing calculations relevant to that drug deal.

That afternoon police executed a number of search warrants. They located $51,460 at the [a]pplicant's residence a 706/115 Beach St, Port Melbourne. That money was later identified as being part of the $59,000 used by Pat to purchase the tablets and hashish from Stumpo earlier that day. At Stumpo's residence at 5 Green Court, Altona, police located the Nokia phone box used by Pat to deliver the $59,000 that day, and $7,000 which was later identified as being part of that $59,000.00. In the shed at Giusseppe Stumpo's residence police located 10,061.6 grams or 10.0616 kilograms of hashish.

Surveillance police observed all of the meetings between [H], Pat and Stumpo where drugs were transacted. They witnessed most of the early meetings between [H] and the [a]pplicant, and various other interactions between the 5 participants.

The total quantity of the substance containing tetrahydrocannabinol seized by police was 24.9 kilograms. Column 2A, Part 3, Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), as in force at the time of the offences (Versions 55), provides that a commercial quantity of a substance mixed with tetrahydrocannabinol is 10 kilograms.

The total quantity of the substance seized by the police containing methylamphetamine was 1.4492 kilograms (1435.4 grams + 13.8 grams...). Column 2A, Part 3, Schedule 11 of the Drugs, Poisons and Controlled Substance Act 1981 (Vic), as in force at the time of the offences, provides that a commercial quantity of a substance mixed with methylamphetamine is 1.25 kilograms.[6]

The Application for Leave to Appeal Against Conviction

10 This case raised three questions for consideration which were posed on behalf of the applicant in the following form:

(1) Can the offence of trafficking in not less than a commercial quantity of a drug of dependence be established on a Giretti basis when none of the separate transactions alleged exceeded the applicable commercial quantity (Ground 1)?

(2) If the answer to the first question is yes, must the actus reus and the mens rea be contemporaneous, such that, in the present context, the prosecution must prove that, from the first transaction to the last, for a continuous period, the applicant intended that the total of the transactions would exceed the applicable commercial quantity for the drug in question (Grounds 1 and 2)?

(3) Was the judge obliged to leave the alternatives of trafficking simpliciter in the applicant's case (Ground 3)?

11 With respect to the first two questions, which are interconnected and relate to grounds 1 and 2, counsel for the applicant submitted:

... the offence of trafficking in not less than a commercial quantity of a drug of dependence cannot be established on a Giretti basis when, as in this case, none of the separate transactions alleged exceed the applicable commercial quantity. Rather, a Giretti-style commercial quantity count could only be made out in a case like the present if sufficient of the separate transactions relied on individually exceeded the applicable commercial quantity so that it could be said that there was an ongoing business of trafficking in a commercial quantity as distinct from an ongoing business of trafficking simpliciter that, in total, eventually exceeded the applicable commercial quantity. It is impermissible, as was done in this case, simply to aggregate separate transactions of trafficking simpliciter occurring over a period of months in order to establish the actus reus or quantity and/or mens rea elements of trafficking in a commercial quantity.

...

Alternatively, ... if, contrary to the primary submission, it is permissible to aggregate separate transactions of trafficking simpliciter occurring over a period of months in order to establish the actus reus or quantity element of trafficking in a commercial quantity, then it still not permissible simply to aggregate the intention associated with each of those transactions and let that suffice as proof of an intention to traffick in a commercial quantity. Less still is knowledge or a belief at or towards the end of the charged period that the commercial quantity has been exceeded sufficient to establish the requisite intention ab initio.

12 The Court of Criminal Appeal made clear in R v Giretti,[7] a decision which has been followed and applied on many occasions thereafter, that the term 'traffick', interpreted in the context of the Drug, Poisons and Controlled Substances Act 1981 (Vic), encompasses both single occasions of the prohibited conduct and engagement in a continuing enterprise or business. It has also been decided that in the context of a single transaction, that, before an individual can be convicted of trafficking a commercial quantity, the prosecution must establish that he or she possessed the intention to traffick in at least the designated amount of the substance.[8]

13 There would appear to be no reason in principle why an individual could not be held liable on a Giretti basis with respect to trafficking a commercial quantity, as opposed to trafficking simpliciter, if that was the business being conducted. So much was not contested on behalf of the applicant either at the trial or in this Court. However, as the extracts above made clear, it was argued before us, although not in the Court below, that each separate occasion covered by a count so formulated, or at least sufficient of them to support the inference of a continuing enterprise or business dealing in such an amount, had to involve a commercial quantity.

14 We cannot accept this contention. It makes no sense as a matter of statutory interpretation or in principle to conclude that an individual who has intentionally engaged in drug dealing to this extent is not to be regarded as trafficking in a commercial quantity simply by reason of the fact that the separate transactions undertaken were, either by design or by accident, below the designated amount for the particular drug. There is force in the Crown's submission that, in the context of a single criminal enterprise, the ability to aggregate a number of separate transactions so as to support the offence of trafficking in a commercial quantity is consistent with the legislative policy underlying the relevant statutory provision to punish more severely those who engage in commercial drug trafficking. What is important is the nature of the business being conducted. It must involve the intentional trafficking, whether in single transactions or cumulatively, in amounts or an amount exceeding the designated quantity of the prohibited substances within the defined period. Accordingly, before a person can be convicted of trafficking in a commercial quantity on this basis, the individual must be found to have possessed the intention to traffick in at least the designated amount contemporaneously with his or her engagement in the conduct said to constitute the actus reus.

1. This view is, we consider, quite consistent with the judgments in Giretti itself. Although the question whether 'the aggravating circumstances of a commercial quantity could be found in relation to a continuous offence' was not resolved, Ormiston JA commented -

... I am by no means satisfied that the aggravating circumstance could not on occasions be appropriately proved in relation to a continuous offence. Without wishing to express a final view on the matter, it is possible that the jury could be asked to draw the inference. If throughout the relevant period the accused had in his possession in excess of a commercial quantity for the purpose of trafficking and had trafficked by buying and selling part of his 'stock in trade', so that the offence might be established in relation to a commercial quantity of that drug.[9]

16 The scenario posed by his Honour is not a particularly good example of the situations in which the position could arise, as once the person took possession of the drug for the purpose of sale,[10] the offence of trafficking in a commercial quantity would have been committed without need to resort to the Giretti notion at all. A more appropriate one might be a case in which the person sets out, possibly possessing no drugs at all, with the intention of dealing in what would amount to a commercial quantity through multiple transactions in a defined period and then embarks upon that enterprise.

17 This approach was adopted by the New South Wales Court of Appeal in R v Hamzy with respect to the similar concept of supply of drugs, where Hunt CJ at CL said -

I see no unfairness to the accused that the Crown should be permitted to accumulate the amounts individually supplied where all of those individual acts can fairly and properly be identified as part of the same criminal enterprise. In the present case, as all of the individual acts upon which the Crown relied could fairly and properly be so identified, I see no invalidity in accumulating the amounts of heroin supplied in order to reach the quantity required for the aggravated offences of supplying not less than a commercial (or a large commercial) quantity. It is only common sense that that should be so. It would be otherwise were the individual acts not part of the same criminal enterprise. ...[11] (Emphasis added)

18 The judge in the present matter instructed the jury that -

The first point was the act of trafficking. One legal meaning of trafficking relates to each individual sale of the drugs. That is one meaning, but that is not the meaning that the Crown have relied on here. A second meaning of trafficking and the one that has been relied on here is not to rely on individual sales per se for each sale constituting a count in itself, but rather to put a period on it and allege, or present that the accused has engaged throughout that period in a continuing trade or business of dealing with, in this case, selling drugs.

So a continuing trade or business of selling drugs through the period, or putting it another way, engaging on a regular and commercial basis in the transaction of drugs from somewhere between the source and the consumer. Somewhere between the source and the consumer assisting the progress of the drugs. Engaging in a continuing operation of trafficking, selling drugs over a period.[12]

...

Now the second matter is the Crown also has to prove it is a commercial quantity that has been trafficked. That is an element of the offence. I have already told you a commercial quantity is ten kilograms of hashish, or hydro-cannabinol and 1.25 kilograms of amphetamines. I just want to say that the Act provides some assistance to the Crown here and it has never been an issue in the case and you probably understand from discussions, I think, that you do not have to worry about purity of the substance.[13]

...

As I say if you accept, as against [the applicant], all of the drug trafficking through from 25 January to 28 March well then it comes to a total of 24.9 kilograms of hashish and 1.44 kilograms of amphetamines. ...

Now the third and final element that I mentioned was the necessary intent, or means rea, and this, along with the other elements, has to be proven beyond reasonable doubt. Now the obligation on the Crown in relation to this element is to prove beyond reasonable doubt against each accused that he intended to commit the act of trafficking alleged, that is trafficking in drugs of dependence and in a commercial quantity.[14]

...

But in respect of [the applicant] certainly the Crown have to prove that he intended to traffic in the drugs, the hashish and the amphetamines which are drugs of dependence, and in a commercial quantity.

Now it sounds easy enough but it is not quite as easy. I will just go on. The Crown will achieve their proof of intent if they prove that the accused actually knew, had actual knowledge that he was, for the moment of course I am accepting that he is in the deal with Stumpo and Stumpo's trafficking is his trafficking. Now if, in the course of that trafficking, he, let us take [the applicant], if [the applicant] knew that it was hashish which is a drug of dependence and knew that it - had actual knowledge and had actual knowledge that it was methylamphetamine, and if he had actual knowledge that there was more then ten kilograms of hashish being trafficked, and more than 1.25 kilograms of amphetamines being trafficked well then if the Crown prove that actual knowledge well that is, of course, the best evidence of the intent.

But it is not quite as stringent as that. Leaving aside actual knowledge, if the Crown prove that the accused had a belief that it was probable or likely that he was trafficking in hashish and amphetamines, and it was probable or likely that the trafficking exceeded the threshold for commercial quantity, then such a level of belief would sustain in you an inference of the necessary intent, which is just a roundabout way of effectively saying that the Crown will succeed in proving intent if they prove actual knowledge or if they prove belief in a situation that was probable or likely.

Now as I told you earlier, in relation to proof of intent the Crown cannot look in, or nobody can look into the minds of the people, it is done by inference. It is done by inference from all the facts and circumstances, and you have to look at all the facts and circumstances and bearing in mind the rule that you are not allowed to draw an inference unless it is the only reasonable one open in all the circumstances, bearing that in mind you ask yourself can I draw the inference that [the applicant], take him first, [the applicant] intended that he, through Stumpo traffic in drugs of dependence to a level beyond ten kilograms of hash and 1.25 kilograms of amphetamines, and that will be established if they prove he knew it outright, or if he believed it was probable or likely.

19 There is no reasonable foundation for any suspicion that, considered in the context of the evidence and issues raised in the trial, the jury may have misunderstood or have been confused about those instructions.

20 It must be borne in mind that the Crown contended at the trial that the applicant was not only an active participant throughout the entire operation, which involved the trafficking in substantial quantities of drugs but, effectively, the organiser of it. A jury was entitled to infer that the applicant intended from the outset that, in the course of his business and within the period covered by the presentment, he would traffick in amounts that in total would exceed the designated amount for each of the drugs concerned. On the authority of Nguyen,[15] it was sufficient to establish the requisite intent if the applicant believed it was likely - that is, a real chance - that the quantity trafficked would exceed these amounts.

21 His defence was summarised by the judge in his charge as follows -

As far as [the applicant] is concerned, the defence has put that Ski was a Strawhorn led vendetta against an innocent man, [the applicant]. That the Ski team of police were corrupt and were involved in a framing or a stitching up of [the applicant] with dishonest evidence. The drugs were planted and moneys were planted and it was done in such a way that the rest of the Drug Squad would not know what was going on through this clandestine group.

That the Crown evidence is unsatisfactory. That [H] is a former crook and a liar. You cannot rely on him for anything he said. Other examples were given concerning Bartlett. Photocopying the photocopies, so there must be something suspicious there. That there was ample opportunity for police, nobody would name, but police to plant the money and plant the drugs. That is no doubt referring to 28 March.

That was basically what was put to you and that is what you will consider and you will consider that defence. Your considerations will be what ever you want them to be of course, but I would have thought your considerations are likely to include was all this explicable on the basis that Stumpo was acting on his own, unconnected with [the applicant]. Which I presume is [the applicant's] submission to you. Nobody is arguing that Stumpo did it - but that [the applicant] was not involved and the only way he has been involved is through this dishonest evidence from the police. And the planting of drugs and the planting of money. And the false evidence of [H] and Pat.

22 There was no dispute concerning the character of the dealing involved in this case. Critically, no issue was raised by the defence about the applicant's state of knowledge or belief, or as to whether or not he intended throughout to traffick in a commercial quantity. The applicant simply argued that he had been 'stitched up' or 'framed'. Counsel for the Crown accepted in argument that, if the applicant's contention that the intention to traffick in a commercial quantity in a Giretti sense had to be present from the outset of the period alleged, the judge's charge was inadequate as this was not made clear. However, we do not agree. Having regard to the real issues as they were defined in the applicant's trial, the judge's instructions were clearly adequate and appropriate.[16]

23 Nor was any issue made at the trial of the 10.06 kg of hashish found by police in Stumpo's shed.[17] Doubtless this was because the amounts of cannabis actually trafficked by Stumpo amounted in total to 14.9 kilograms, almost 50 per cent above a commercial quantity. In short, as senior counsel for the Crown submitted on the appeal, the quantity found in Stumpo's possession 'was not relevant to anything' in the trial. In the circumstances of this trial, no separate direction was required in respect of that amount. Ground 9 fails.

24 A further argument advanced on behalf of the applicant to which brief reference should be made (Ground 2A) was to the effect that as the applicant was involved in a joint enterprise with Stumpo to sell the drugs and was not present when the sales were effected, the prosecution had to prove that Stumpo also had the intention from the outset of the period covered by the count to traffick in a commercial quantity. This was so, it was said, because liability could only attach to the applicant as an aider and abettor to Stumpo's conduct in selling.

25 We rejected this contention. As counsel acknowledged, the judgment in R v Clarke & Johnstone[18] stands squarely against it. The court there pointed out:

The offence can be (and usually is when conducted on a large scale), and in this case truly was, a 'joint venture'. Still less is the offence as charged and presented by the Crown a mere case of conspiracy. The gist of the offence was actual participation in some aspect of the trafficking - not merely an agreement to traffick.[19]

26 The involvement of the applicant in the present case was not as an aider and abettor of Stumpo. He was an active principal in a true joint enterprise. His own conduct during the period covered by the count itself constituted trafficking under the Drugs, Poisons and Controlled Substances Act. The fact that he was not present for all activities undertaken in the course of the enterprise is beside the point. He was an active participant in the offence. His criminal responsibility was direct, not derivative.

27 The third question, which addresses ground 3, can be answered simply - no. Indeed, the suggestion that the judge may have been required to put the alternative of trafficking simpliciter to the jury has a remarkable air of unreality about it when regard is had to the manner in which the trial was conducted on behalf of the applicant.

28 It has not been contended that his Honour's summary of the defence contentions was inaccurate or incomplete in any respect, nor has there been any foundation shown to exist in the evidence, either directly or as a matter of inference, that would require the judge to direct the jury on the alternative basis of trafficking simpliciter. One can only wonder at the sense of bemusement that would almost certainly have been experienced by the jury had the judge embarked upon such an inappropriate course and the difficulty which his Honour would have had in formulating any meaningful instructions.

29 The application for leave to appeal against conviction must, we consider, be refused.

The application for leave to appeal against sentence

30 For convenience we will address grounds 3 and 5(a) first.

31 It is claimed that his Honour should not have had regard to the potential harm that could have resulted from the drugs in this case for two reasons. First, it was said, as they were being sold to undercover police members, no damage could have been occasioned. This curious argument completely ignores the reality that, viewed from the perspective of the applicant, the transactions were genuine with potentially very serious consequences to the ultimate users and society generally. The fact that the drugs would not be used, because their distribution was intercepted by police, can hardly be seen to mitigate the seriousness of the applicant's conduct or otherwise operate in his favour. It is important to have regard to the context in which his Honour's remarks on this aspect were made

As I have already indicated, you were the organiser. You were able to invoke the services of others, including well known criminals. I do not know what your sources of supply were, it has never been made clear, but it is a worry. Indeed I recall you boasting on one occasion on one of the tape-recorded conversations - and these are not exact words - to the effect that you could get any amount of any drug you wanted. It indicates a concerning level of familiarity with the drug world. A world which I note, of course, you have a past association with having been convicted back in 1987 of trafficking in a drug of dependence, heroin, for which you were sentenced to 11 years with a minimum of eight and a half years.

You were obviously again quite prepared to spread the drugs into the community for your own profit whilst, as I say, living in what appeared to be very pleasant circumstances with a bay view in Port Melbourne. Clearly no thought to the harm, no thought to the expense that was potentially to be caused to the community.

I can do nothing other than, in this case, view your culpability as of the highest order.

32 A second argument, which was similarly misconceived, was to the effect that the following reference to potential harm was indicative of error and suggested the adoption of an approach that was inconsistent with the reasons of the Court in R v Pidoto and O'Dea.[20] His Honour said:

Parliament has seen fit to impose 25 year maximum terms of imprisonment for this offence and you have two counts and your second count is as a serious drug offender. I have already outlined the amounts of drugs that you were, in your view, letting out into the community and I have already expressed in the co-offender's sentence my views, representing the community's views, as to the evils of drug trafficking and drug use and the untold harm and cost that is involved.

It is obviously a serious matter to be involved in these offences. Drug offences are regarded by the community and by the courts, as the community's representative, as serious criminal offences and trafficking is a serious category of offending in relation to drugs.

I have recounted, more often than I care to remember in this capacity of sentencing drug offenders, the evils associated with drugs in the community, the effects on the health of the victims including often the young in our society and the untold expense to the community in the policing of the problem, in the treatment of those affected and the loss of work time and the mental and psychological injuries and negative effects suffered by drug users.

34 There is nothing in these comments that is in any way inconsistent with the judgment in Pidoto and O'Dea. The Court was there concerned with the questions, which was answered in the negative, whether in the determination of the sentence for the particular offence of trafficking there was any place for consideration of the relative harmfulness of the drug involved, and whether it was appropriate for judges to attempt to make their own individual assessments of the perniciousness of various substances. In addressing these questions, the court considered in the context of the legislative scheme, the occasions on which judges had attempted to develop some hierarchy of harmfulness of a range of substances and to assess, largely based upon their individual experience or understanding based upon anecdotal information, the particular dangers related to the use of drugs. The court identified the very substantial obstacles lying in the path of the adoption of such an approach.

With regrettable frequency, judges and magistrates are called on to deal with cases involving drug-affected or addicted persons, and with cases which relate to trafficking in a wide range of substances. Being exposed to evidence of the damage associated with the trafficking and use of various drugs, judges and magistrates may well come to view one drug as more pernicious than another. Their collective experience is clearly capable of providing an important insight into the kinds of problems associated with drug use, and the frequency with which those problems are encountered. Indeed, it is experience which could make a valuable contribution to the development of some form of harm-based classification were that legislative path to be chosen.

If some classification of seriousness is to be made on the basis of the perceived characteristics of particular drugs, this task should only be undertaken after clear identification of the criteria upon which the assessments are to be made. We do not regard the experience - individual and collective - of judges and magistrates as affording any basis whatever for a court to form, let alone act on, a view about the relative harmfulness of a particular drug. This is simply not a subject to which the doctrine of judicial notice has any application, less still the doctrine of precedent. After all, a conclusion about the harmfulness of a particular drug is a conclusion of fact.

Ultimately, the question to be considered is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed for dealing in the material involved. Of course, not all examples of trafficking are equally serious and it is obvious that discrimination between offences and offenders is required, based upon a wide range of considerations, in order to ensure that the sentences handed down in individual cases are appropriate in the particular circumstances relating to the offences and offenders concerned.

But in the fixing of the sentence for the particular offence of trafficking, there is no place - as the law stands - for any consideration of the (relative) harmfulness of the drug involved.[21]

36 The references in the present case do not suggest that the sentencing judge was influenced by some notion of hierarchy of noxiousness of prohibited drugs, or the specific effects of the materials in question. His Honour was concerned with the seriousness to be attributed to drug trafficking generally and his remarks do no more than emphasize the significance attributed by the legislature to that form of anti social behaviour in our community, pointing to part of the rationale underpinning the entire statutory regime and law enforcement activities in this area.[22] They do nothing more than echo what this Court has said on many occasions.

37 Under this ground, the contention was advanced that the sentencing judge failed to give sufficient weight to the delay in bringing the matter to trial. The applicant was arrested on 28 March 2001 and the trial was not concluded until 25 October 2005. It would appear that a major part of the delay was due to the investigation into the involvement of some drug squad members, including some connected with this matter. The applicant should not be regarded as in any way responsible for the substantial period of time during which the case remained unresolved, it was said, and in accordance with well recognised principle, he was entitled to have that period taken into account in his favour.

Since you were bailed in May 02 you have not reoffended. I accept that it is human nature that the uncertainty of this matter hanging over your head would involve anxiety and a level of punishment in itself, although I must record and take account of the fact that part of that delay has been through your own actions.

39 It seems likely that he was there referring to his earlier finding that:

Your attitude from the outset was one of obstruction - and complete, and possibly bordering on paranoia - hatred or hostility or antipathy towards drug squad police members. I do not know whether this developed from your previous experience with them in relation to your earlier offending, but it seemed clear that that was your attitude. It started off with a head-butt at the door of your apartment on 28 March. You were apparently the author of two years of futile investigation into the bona fides of various investigating police and, as I said, there has been not one concession that I could see in relation to the running of the Crown's proofs in the trial. Everything had to be proved including every aspect of continuity and every aspect of logging of items into and out of safes and every other minute detail.

Of course that was your right and you will not be given a greater punishment because you exercised your right, but nor can your attitude in general reflect any form of remorse or cooperation. Factors which can, and usually do if present, warrant some level of mitigation.

40 The sentencing judge was, on these findings, entitled to reach the conclusion that he did. Whether or not sufficient weight was attributed to the delay in the resolution of the matter then falls to be considered under the claim that the sentence was manifestly excessive.

41 Grounds 1 and 2 and 4 are closely connected and can be addressed together. A number of propositions were advanced in support of them. First it was contended on behalf of the applicant that the sentence of nine years' imprisonment imposed on each count was manifestly excessive in view of the applicant's age and financial circumstances. Secondly, counsel argued that the sentence imposed on count 1, which involved just over the applicable commercial quantity for the drug concerned, should, in any event, have been less than that imposed on count 2 where a relatively much more significant amount had been trafficked. Thirdly, the judge appeared to have approached the question of the appropriate measure of cumulation of the separate sentences incorrectly in two respects, it was submitted, in that he erred in considering that he was required 'to pay greater attention to cumulation on count 2 because of the provisions of the Sentencing Act' and because he formed the view that only a 'modest degree of cumulation' should be directed in the circumstances.

42 It is apparent upon consideration of the sentencing remarks in this case that the judge directed attention to all relevant principles of law and factual circumstances relating to both the offences and the offender involved. We do not consider that he has been shown to have fallen into error with respect to any of them. He was mindful of the applicant's age of 56 years, to which he referred specifically, and of his personal circumstances.

43 His Honour accepted that the applicant had demonstrated strong and continuing support to members of his family. He took into account his state of health which appeared to be good, the fact that he had not offended subsequent to his release on bail in May 2002 and the stress to which the applicant had been undoubtedly subject as he awaited the trial of the charges. However, his Honour stated that he could find no factors that pointed to any measure of rehabilitation. He continued:

[o]nce again it is the balancing exercise of the sentencing judge here to, in your case particularly, pay considerable attention to the seriousness of your offending and the high degree of need for denunciation, personal and general deterrence and the lack of any real evidence of the prospects of rehabilitation.

Indeed it can only be concluded that, bearing in mind your prior offending and the prior significant sentence you obtained for that and then your serious level of offending again, you are indeed, or have been, an important drug trafficker in our community. But I also give proper account to the factors that I have outlined that allow a degree of mitigation and I am mindful always of the need to provide a (sic) ultimate sentence that is proportionate and reasonable and your age comes into that equation. I must also repeat the need to pay greater attention to cumulation on Count 2 because of the provisions of the Sentencing Act.

44 We should add that we do not regard the statement of the judge concerning the impact of the 'provisions of the Sentencing Act' - which we understand to have been a reference to the fact, as the judge stated elsewhere, that on count 2 the applicant fell to be sentenced as a serious offender - as implying any error. Section 6E of the Sentencing Act 1991 provides -

6E Sentences to be served cumulatively

Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

45 His Honour was obliged to direct attention to whether any and what degree of concurrency was appropriate. It must be borne in mind that the applicant engaged in trafficking in two separate drugs. That fact and the separate criminality involved had to be recognised by the making of an appropriate order for cumulation. His remarks indicate nothing more than that he was mindful of his responsibility in this regard.

46 Although the amounts of the drugs trafficked have different relationships to their respective designated quantities, we are unpersuaded that the judge fell into error in imposing the same sentences for them. As the contributors to the joint judgment in Wong v The Queen pointed out, the weight of the trafficked material is only one of the matters to which regard must be had in the determination of an appropriate sentence.[23] Whilst, of course, the extent to which the trafficking exceeded the designated amount may be a significant factor in the determination of the appropriate sentence in an individual case, it certainly does not follow that there is some mathematical relationship of the kind for which counsel contended here. The judge had to take into account a range of sentencing considerations, bearing upon the applicant's criminality in engaging in these activities, factors militating in favour of mitigation of penalty and the totality principle. It is clear that he did so. Unless the sentence of nine years on count 1 was shown to be manifestly excessive - and in our view it has not been - the applicant can have no complaint when the same sentence is imposed on count 2.

47 In all of the circumstances, we do not consider that the exercise of the discretion reposed in the sentencing judge can be seen to have miscarried. No breach of principle has been shown and the individual sentences, degree of cumulation ordered, the total effective term of imprisonment imposed and the non parole period fixed do not bespeak error. We would dismiss the application for leave to appeal.

[1] (a) Handling stolen goods: Sentenced to pay a fine of $1,000 in default to be imprisoned for three months; and

(b) Heroin: Sentenced to be imprisoned for 11 years and serve a minimum of eight years and six months before being eligible for parole.

[2] His Honour declared that, on count 2, the applicant was sentenced as a serious drug offender pursuant to Part 2A of the Sentencing Act 1991 (Vic).

[3] The maximum penalty of trafficking a commercial quantity of a drug of dependence 25 years' imprisonment and for trafficking simply a drug of dependence the maximum penalty is 15 years.

[4] Four further grounds were abandoned and need not be addressed.

[7] R v Mario Giretti and Patricia Giretti (1986) 24 A Crim R 112.

[8] R v Nguyen; sub nom DPP Reference (No 1 of 2004) (Vic); [2005] VSCA 172; (2005) 12 VR 299, [9]-[10] (Vincent, Eames and Nettle JJA).

[9] R v Mario Giretti and Patricia Giretti (1986) 24 A Crim R 112, 134.

[10] The definition of traffick in s 70 of the Drugs, Poisons and Controlled Substances Act 1981 includes 'possession for sale'. It should also be borne in mind that, the legislation has altered in a number of respects since the judgment in Giretti. In particular, the fact that the amount of drugs involved exceeded that designated as constituting a commercial quantity is not now treated as an aggravating circumstances but as a separate offence - See R v Satalich [2001] VSCA 106; (2001) 3 VR 231.

[11] 74 A Crim R 341, 350-351; see also R v Moussad [1999] NSWCCA 337.

[15] R v Nguyen; sub nom DPP Reference (No 1 of 2004) (Vic);[2005] VSCA 172; (2005) 12 VR 299.

[16] See The Queen v AJS [2005] VSCA 288; (2005) 12 VR 563, [54]-[57].

[18] [1986] VicRp 64; [1986] VR 643.

[20] [2006] VSCA 185; (2006) 14 VR 269.

[21] R v Pidoto and O'Dea 14 VR 269, 282-83.

[22] See also The Queen v Perrier, Pop and Tilley [2008] VSCA 97, [61].

[23] [2001] HCA 64; (2001) 207 CLR 584, 609.