R v McEwen; R v McMillan [2005] VSCA 202

3 These are applications by four applicants for leave to appeal from sentences imposed upon them in the County Court, following pleas of guilty by each of the applicants to counts of drug offences.

4 Each of the first three applicants pleaded guilty on 29 April 2004 on separate presentments before His Honour Judge Robertson. The fourth applicant pleaded guilty on 9 August 2004 before His Honour Judge Strong.

5 The first applicant, Nathan James McEwan, now aged 30 years, pleaded guilty to two counts: that at Melton on 15 October 2002 he possessed a drug of dependence namely methylamphetamine (Count 1); and that at Ballarat on 17 October 2002 he trafficked in a drug of dependence namely methylamphetamine. He admitted a number of prior convictions. The learned sentencing Judge directed that a psychological report be provided in relation to the applicant. That having been done, on 21 June 2004 His Honour convicted the applicant on both counts and sentenced the applicant on Count 1 to one month's imprisonment and on Count 2 to two years' imprisonment. He directed that the sentence on Count 2 be suspended as to one year for a period of three years. A declaration as to 38 days' pre-sentence detention was made.

6 The applicant McEwan, by noticed filed on 5 July 2004 and substituted by notice filed on 25 February 2005, applies for leave to appeal against the sentence on

Count 2 upon the ground that the sentence is manifestly excessive (ground 1); and by notice filed on 28 February 2005 that the sentence is manifestly disparate with the sentences imposed upon his co-offenders (three of whom are present applicants) (ground 2); and that "a sentence of actual imprisonment" was manifestly inappropriate (ground 3).

7 The second applicant, John McMillan now aged 30 years, pleaded guilty to three counts: that at St Kilda and other places between 16 October 2002 and 20 November 2002 he trafficked in a drug of dependence namely diacetylmorphine (heroin) (Count 1); that at St Kilda and other places between 21 October 2002 and 14 November 2002 he trafficked in a drug of dependence namely methylamphetamine (Count 2); and that at St Kilda and other places between 2 November 2002 and 6 November 2002 he trafficked in a drug of dependence namely temazepam (Count 3). He admitted a number of prior convictions. The learned sentencing Judge directed that a psychiatric report be provided in relation to the applicant. That having been done and further submissions upon disposition heard, on 15 June 2004 His Honour convicted the applicant upon the three counts and sentenced the applicant on Count 1 to four years' imprisonment; on Count 2 to four years' imprisonment; and on Count 3 to four years' imprisonment, giving a total effective sentence of four years' imprisonment. His Honour ordered that the applicant serve three years' imprisonment before becoming eligible for parole. Pursuant to s.13(3B) Sentencing Act 1991 His Honour ordered that the period of imprisonment he imposed be served cumulatively upon any period of imprisonment which may be required to be served in custody upon the cancellation of a parole order. A declaration as to 47 days' pre-sentence detention was made.

8 The second applicant by notice filed on 25 June 2004 applies for leave to appeal from the sentences imposed upon the following grounds: that the Judge erred in assigning to the applicant a role not open on the facts (ground 1); that the sentences imposed upon Counts 1, 2 and 3 were manifestly excessive (grounds 2, 3 and 4); that the Judge failed sufficiently to distinguish between the culpability arising in respect of each of the counts (ground 5); that the Judge erred in imposing an effective sentence with insufficient distinction between the head sentence and the minimum term (ground 6); that the Judge erred in failing to place any or sufficient weight on the applicant's prospects for rehabilitation (ground 7); that the Judge "erred in his assessment of the applicable maximum penalty of traffick when determining his sentence and did not adjust the sentence imposed on the count when alerted by counsel of his error" (ground 8); and that the Judge "erred in that there was no adequate opportunity to address matters raised in the reports ordered by him and relied on in the sentencing process" (ground 9). Grounds 1 and 9 were not pursued before us.

9 The third applicant, Bosco Savici, now aged 36 years, pleaded guilty to two counts: that at Noble Park on 24 October he trafficked in a drug of dependence namely diacetylmorphine (heroin) (Count 1); and that at Noble Park on the same date he had in his possession a drug of dependence namely methylamphetamine (Count 2). He admitted a small number of prior convictions. The applicant was assessed for a community-based order on 24 May 2004, failed to appear on the adjourned date of 2 June 2004 and on 22 September 2004 was apprehended. On 30 September 2004 His Honour convicted the applicant on Count 1 and sentenced him to 11/2 years' imprisonment wholly suspended as to 9 months for the period of two years; and convicted the applicant on Count 2 and sentenced him to one month's imprisonment suspended as to 9 months for a period of two years, making a total effective sentence of 11/2 years' imprisonment suspended as to 9 months for a period of two years. A declaration as to 10 days pre-sentence detention was made. Orders were made as to the provision of a forensic sample (saliva), forfeiture (a mobile telephone) and disposal (of drugs).

10 The third applicant by notice filed on 14 October 2004 and substituted by notice filed on 24 February 2005 seeks leave to appeal from the sentences imposed upon the grounds that "the sentence" (sic) is manifestly excessive (ground 1); that the sentence is manifestly disparate with those imposed upon the co-offenders (who were not the other applicants) (ground 2); and that "a sentence of actual imprisonment" was manifestly inappropriate (ground 3).

11 The fourth applicant, Jose Carlos Morais, now aged 32 years, on 9 August 2004 pleaded guilty before His Honour Judge Strong to two counts: that at Dandenong and other places between 4 October 2002 and 27 November 2002 he trafficked in a drug of dependence namely methylamphetamine (Count 1); and that at Dandenong on 27 November 2002 he, being a prohibited person, possessed an unregistered firearm (Count 2). On 17 August 2004 the learned sentencing Judge convicted the applicant on Count 1 and sentenced him to be imprisoned for 21/2 years; and convicted the applicant on Count 2 and sentenced him to be imprisoned for 3 months. His Honour directed that the sentence imposed upon Count 2 be served cumulatively upon that imposed on Count 1, making a total effective sentence of imprisonment of 2 years and 9 months. His Honour further ordered that 2 years of that sentence be served cumulatively upon a sentence of 2 years and 9 months' imprisonment imposed on 15 April 2003. His Honour fixed a new non-parole period of 2 years and 8 months commencing on 17 August 2004.

12 The fourth applicant by notice filed on 30 September 2004 and substituted by notice filed on 24 February 2005 seeks leave to appeal from the sentences imposed upon the grounds that His Honour "erred by failing to consider and apply, adequately or at all, the totality principle" (ground 1); and that His Honour erred in the fixing of the new non-parole period in that that period was 9 months longer than that intended by His Honour. By a late notice filed two days before the hearing before us the applicant also sought leave to appeal from his conviction on Count 2 on the ground that the relevant section of the Firearms Act 1996 (s.5(1A)) was not in force at the date of the charged offence.

13 A summary of relevant evidence is as follows.

14 The four applicants were charged in the course of a police investigation codenamed Operation Fusion which centred upon the drug trafficking activities of Levent Alparslan who is currently awaiting trial. Other co-defendants include Tracey Little, Paul Francis Wilkins, Steven Zembellakis, Sean David March, Kerry Anderson, Huseyin Alparslan, Walter Phillips and Mark Jeffrey.

15 Between 4 October 2002 and 19 November 2002, a lawful telephone intercept was placed on a mobile telephone service of Levent Alparslan. A total of 7,442 calls were monitored. A large number of these calls were involving the trafficking of various drugs, including methylamphetamine, heroin and temazepam. As the monitoring continued, a number of persons were identified as either purchasing drugs from Alparslan, assisting Alparslan to traffick either by acting as a courier or providing a safe-house for storage of supplies, or by assisting Alparslan to launder the proceeds of the drug trafficking activity. It was the prosecution case that Alparslan trafficked in a large commercial quantity of methylamphetamine, and that Alparslan primarily dealt in ounce quantities of methylamphetamine at a price of between $2,000 and $2,500 per ounce.

16 As to the applicant McEwan, on Count 1 the prosecution case was that on 15 October 2002, McEwan was in possession of methylamphetamine. The amount of the drug is not known. The prosecution did not take issue with the proposition that the possession was not for a purpose relating to trafficking. On Count 2 the prosecution case was that on 17 October 2002, McEwan trafficked in methylamphetamine as an aider and abettor to a 10-ounce deal between Alparslan and a co-offender Mark Jeffrey. Alparslan attended at Ballarat on 17 October 2002 and supplied Jeffrey with 10 ounces of methylamphetamine for an undisclosed price. McEwan was enlisted to travel with Alparslan to "keep him company", that is, to act as security. It was accepted by the prosecution that McEwan was unaware of the quantity of the drug involved. Alparslan told him he would receive a couple of thousand dollars for accompanying him. When arrested McEwan made a no comment record of interview.

17 As to the applicant McMillan, on Count 1 the prosecution case was that he trafficked in heroin between 16 October 2002 and 20 November 2002, based on telephone interceptions. On 30 December 2002, police executed a search warrant at 1/93 Alma Road, St Kilda. McMillan was present. The premises were searched. Items located included one plastic bag containing white rock and powder, 12 sets of grey scales with white powder in a bowl, one pair of scissors with white powder, one box of Glucodin powder and $455 cash. The items were subsequently analysed. The powder on all items was heroin. The quantity of heroin in the plastic bag was 3.8 grams of substance at approximately 50% purity. The amount of heroin trafficked could not be quantified by the prosecution. Count 2 was trafficking in methylamphetamine between 21 October 2002 and 14 November 2002. The prosecution case was that the 3 ounces trafficked on 12 and 13 November 2002 was sold to others. Other ounces that he purchased from Alparslan were for personal use. When arrested, McMillan substantially admitted the offences and said he was a heroin addict and a "middle man".

18 As to the applicant Savici, on Count 1 the prosecution case was that on 24 October 2002, Savici trafficked in heroin. In Noble Park Savici met with Alparslan and they exchanged materials. Located in Savici's vehicle was a small plastic bag containing a white powder clipped under the belt clip of his mobile phone. Savici initially gave a false name but police later established his identity. It was the prosecution case that Savici was acting as a courier of a quantity of heroin from an unknown supplier to Alparslan, via co-offender Phillips' residence, and collected the methylamphetamine located in his car by police as payment. The white powder was analysed and found to be methylamphetamine and amphetamine weighing 0.8 grams (of 60% pure methylamphetamine).

19 As to the applicant Morais, on Count 2 it was the prosecution case that Morais trafficked in methylamphetamine between 5 October 2002 and 27 November 2002 both in his own right and acting as a courier for Levent Alparslan. Between 5 October 2002 and 19 November 2002 it was alleged Morais purchased a total of 6 ounces (168 grams) of methylamphetamine from Alparslan. Morais aided and abetted the trafficking of 10 ounces of methylamphetamine from Alparslan to Mark Jeffrey on 17 October 2002 by collecting the methylamphetamine and assisting to transport it to Ballarat. On 27 November 2002 police searched Morais' house at 107 Herbert Street, Dandenong. Police located an imitation pistol (Count 2), 13.9 grams of methylamphetamine contained in plastic bags ranging in purity from 15% to 60% and a set of scales containing traces of methylamphetamine. It was alleged that the methylamphetamine was in possession for sale, and is therefore part of Count 1. Morais gave an essentially no comment record of interview.

20 Proceedings concerning other accused are as follows. On 2 September 2003 in the County Court at Melbourne, His Honour Judge Nixon passed sentence upon Steven Zembellakis in respect of one count of possession of cannabis L on 6 November 2002, two driving offences, failing to keep ammunition secure, and possession of amphetamines. Zambellakis did not have any previous convictions. Zambellakis had undertaken to assist the authorities in the investigation and prosecution of offences alleged to have been committed by Levent Alparslan. His Honour imposed a sentence of two years' imprisonment on Count 1, such sentence wholly suspended for three years. On the other charges, His Honour imposed fines totalling $1,050.00.

21 On 13 February 2004 in the County Court at Melbourne, His Honour Judge Williams passed sentence upon Sean David March in respect of three counts of trafficking amphetamine on 12 and 25 October 2002 and between 28 October and 15 November 2002 (Counts 1, 3 and 4); and one count of attempted handling of stolen goods between 18 October and 8 November 2002 (Count 2). March admitted seven previous convictions from a Magistrates' Court appearance on 23 February 2000. They included four drug related offences including trafficking in amphetamines and trafficking in cannabis L upon which he was sentenced to three months' imprisonment suspended for twelve months and fines totalling $1,600.00. March had undertaken to assist the authorities in the investigation and prosecution of offences alleged to have been committed by his co-offenders including Levent Alparslan. Judge Williams imposed sentences of twelve months' imprisonment on each of Counts 1 and 2, and two years' imprisonment on each of Counts 3 and 4. He ordered that three months of each of the sentences imposed upon Counts 1 and 2 and six months of the sentence imposed upon Count 3 be served cumulatively upon Count 4, making a total effective sentence of three years' imprisonment. His Honour ordered that the sentences be wholly suspended for three years.

22 On 14 April 2004 in the County Court at Melbourne, His Honour Judge Morrow passed sentence upon Kerry Anderson in respect of one count of trafficking heroin on 7 November 2002. Anderson had been found guilty of six charges of theft from a Magistrates' Court appearance on 24 April 1996. His Honour ordered that Anderson be placed on a community-based order for twelve months with special conditions including the performance of 300 hours of unpaid community work and to undergo assessment and treatment for alcohol and drug addiction.

23 On 13 November 2004, His Honour Judge Strong passed sentence upon Walter John Phillips in respect of one count of trafficking in a commercial quantity of methylamphetamine between 4 October 2002 and 19 November 2002 (Count 1); one count of possession of cannabis L on 19 November 2002 (Count 2); two counts of possession of proceeds of crime; and one count of possession of a prohibited weapon. Phillips admitted three previous convictions from two Magistrates' Court appearances on 6 October 1988 and 25 March 1993. His previous sentences included a sentence of three months' imprisonment suspended for twelve months. His Honour imposed a sentence of twelve months' imprisonment on Count 1 (commercial trafficking of methylamphetamine), fourteen days' imprisonment on Count 2 (possession of cannabis L), three months' imprisonment on each charge of possession of proceeds of crime, and imposed a fine of $250.00 on the charge of possession of a prohibited weapon. His Honour ordered that one month of the sentences imposed upon the second charge of possession of proceeds of crime be served cumulatively upon Count 1, making a total effective sentence of thirteen months' imprisonment. His Honour ordered that six months of the sentence be suspended for three years.

24 On 7 February 2005, before His Honour Judge Strong, a jury found Mark Jeffrey guilty of one count of trafficking methylamphetamine between 12 October 2002 and 26 October 2002 (Count 1); and one count of possessing cannabis L on 6 December 2002 (Count 2). His Honour heard a plea in mitigation and remanded Jeffrey in custody for assessment for his suitability for an Intensive Correction Order.

25 On 8 February 2005, His Honour Judge Strong passed sentence upon Huseyin Alparslan in respect of one count of trafficking amphetamine on 12 October 2002 (Count 1) and one count of possessing amphetamine on 12 October 2002 (Count 2). Huseyin Alparslan did not have any previous convictions. His Honour ordered that Huseyin Alparslan be convicted and placed on a good behaviour bond for three years.

26 Levent Alparslan's trial is yet to be heard.

27 I turn to the submissions made by counsel in support of the applications on behalf of the respective applicants.

28 For the first applicant, McEwan, Mr Boyce submitted that the sentence imposed upon Count 2 was manifestly excessive. He submitted that that was so in the light of the following matters. The applicant was an aider and abettor assisting in the transport of 10 ounces of methylamphetamine, in circumstances which he was unaware of the amount of the drug transported. His decision to accompany the principal was spontaneous and opportunistic whereby he anticipated making some money. Further, the applicant had pleaded guilty. He had prior convictions although none for drug offences. His first interaction with drugs came after his last release from gaol. He had enrolled himself in Ballarat University and hoped to become a fitness instructor. He had three young children. Finally, the position of the prosecution at sentence was that a fully suspended sentence was within range for this offending.

29 As to parity, Mr Boyce submitted that the sentence imposed on Count 2 offended the principle of parity when regard is had to the sentences imposed on the applicant's co-offenders Morais, March, Zambellakis, Anderson and Wilkins. Each of those offenders was connected with the central figure, Alparslan. Mr Boyce noted that Morais pleaded guilty to a between dates count of trafficking in methylamphetamine and a count of possession of an unregistered firearm. The trafficking involved sales made in his own right and acting as a courier for the principal. On the trafficking count, Morais received a 30 month term of imprisonment, only six months more than the applicant McEwan, yet Morais was a much more serious offender and on a between dates presentment. Morais also had prior convictions for trafficking in heroin and in amphetamine and numerous prior convictions for possession of such drugs. March pleaded guilty, inter alia, to three counts of trafficking in his own right and on behalf of the principal. He had a prior conviction. He assisted police and undertook to give evidence for the prosecution in the future. He received a total effective sentence in the form of a three year fully suspended sentence. Zambellakis pleaded guilty to one count of trafficking. He was transporting amphetamine for the principal. He undertook to give evidence for the prosecution. He had no prior convictions to the age of 36. He received a two year term of imprisonment which was fully suspended. Ms Anderson pleaded guilty to one count of trafficking in heroin on behalf of the principal. She was acting as a courier. The heroin involved was 1 ounce. She was 25 at the time of sentence. She received a Community Based Order without conviction. Wilkins pleaded guilty, inter alia, to two counts of trafficking in amphetamines. He was 36 with no prior convictions with a good work record and good future prospects. He was an intermediary between the principal and another. He was convicted and placed on a Community Based Order.

30 Although Mr Boyce's submissions were thoughtful and clear, I am unpersuaded by them. As to manifest excess, the individual sentences for Counts 1 and 2 were within the range as was the total effective sentence. It was open to the learned Sentencing Judge in light of the seriousness of the offending in Count 2, and the history of the applicant, to order that part of that sentence be served immediately. Further, Count 2 was a serious offence. Although not involving a significant degree of pre-meditation on the applicant's behalf, he provided an essential service to the principal offender in the trafficking of a large amount of methylamphetamine (10 ounces). The provision of security can be significant in drug trafficking. The applicant was paid a substantial sum of money for his assistance and must have been aware that a significant quantity of drugs was involved in order to justify the payment of $2,000 for his services. The sentencing Judge was entitled to attach significant weight to the principle of general deterrence in such circumstances. As to the applicant's history, he had previously appeared in Court on eight occasions for a total of 20 offences between 1991 and 1998. Whilst he had no previous convictions for drug offences he had committed serious offences of dishonesty and violence. He had previously received custodial sentences on four occasions following earlier dispositions by way of Community Based Order (which he breached) and Intensive Corrections Orders (on two occasions). In those circumstances His Honour was entitled to attach less weight to rehabilitation and more weight to specific deterrence. Finally, because of the need to impose a custodial sentence on Count 2, it was appropriate for His Honour to impose a short sentence on Count 1. He made the sentences wholly concurrent. As to parity, the offenders, Morais, March, Zambellakis, Anderson and Wilkins were not strictly speaking co-offenders of the applicant. In any event, there were significant distinguishing features between the different offenders and their offending conduct and the applicant. Morais received a sentence of imprisonment to be immediately served as opposed to a lesser sentence wholly suspended (as was the case for the applicant). March and Zambellakis undertook to assist authorities in the prosecution of the principal offender Levent Alparslan and were entitled to significant discounts in sentence for that reason. Zambellakis had no prior convictions. Ms Anderson's criminality related to one ounce of heroin as opposed to the applicant's involvement in the trafficking of ten ounces of methylamphetamine. She had good prospects of rehabilitation given her age (25 at sentence) and limited criminal history (which did not include drug offences). Wilkins had no prior convictions and was 36 years of age. His prospects for rehabilitation were good and he had a good work history. In my view there was no manifest disparity in the circumstances. There were sound reasons to impose the various sentences that were imposed for each offender. The learned sentencing Judge was not in error in imposing a sentence of imprisonment in the case of McEwan. The Judge took all relevant matters of mitigation into account in exercising his discretion.

31 In giving his reasons for sentence of the applicant McEwan, His Honour mistakenly referred to the maximum penalty for Count 2 as 20 years' imprisonment instead of 15 years' imprisonment. However counsel raised that matter before His Honour proceeded to pass sentence, and His Honour was aware of the correct maximum when he imposed sentence. It cannot be said that when the sentence was passed His Honour was labouring under a mistaken belief as to the maximum penalty, nor that the error if present was material.

32 I would dismiss the application of the first applicant, McEwan.

33 For the second applicant, McMillan, Mr Croucher in relevant and well-directed submissions, in support of grounds 2 to 4 (manifest excess of the sentences on Counts 1 to 3) submitted that the applicant was entitled to rely on a number of factors in mitigation of penalty. They were the applicant's full admissions to police; his pleas of guilty at committal stage; that he was a heavy drug user at the time of the offending; that his only gain from the offending was to support his own and his girlfriend's habit; that he understood that he needed to rid himself of his drug addiction; and that there was some hope that rehabilitation might occur, particularly given the applicant's resolve to rid himself of drug addiction and the fact that he had the ongoing support of his parents. As to Counts 1 and 2 Mr Croucher submitted that, in view of the factors in mitigation, the level of trafficking did not warrant sentences of four years' gaol. The periods of trafficking alleged were just over a month (Count 1) and just over three weeks (Count 2), and the amounts alleged (insofar as quantification was possible) were relatively small. As to Count 3 Mr Croucher submitted that, whether or not the sentences on Counts 1 and 2 were outside the range, the sentence on Count 3 clearly was so. The offence was pleaded as occurring between 2 and 6 November 2002. It concerned two bottles of a prescription drug Normison (temazepam) containing 18 tablets. Mr Croucher submitted that those matters required the passing of different sentences on Counts 1 and 2 on the one hand and Count 3 on the other. That the sentences were allowed to be served concurrently is no answer. It was submitted that the discretion is reopened by reason of this error.

34 In support of grounds 6 and 7 Mr Croucher submitted that even if the total effective sentence were within range, the non-parole period was not. A non-parole period of three years was too heavy and failed to reflect the factors in mitigation. Mr Croucher further submitted that the non-parole period was also unusually high when considered as a proportion of the total effective sentence. Given the applicant's history of drug use and his prior convictions, it was necessary to fix a shorter non-parole period so that the applicant had an incentive to engage in rehabilitative steps in gaol in order that he might be released on parole immediately upon becoming eligible and so that he might have supervision for a long period after such release. Yet, the submission continued, the learned Judge did not appear to give any discrete consideration to the fixing of the non-parole period.

35 Finally Mr Croucher submitted that the Judge sentenced on the basis that the maximum penalty for trafficking was 20 years' imprisonment, when in fact it was 15. The error was brought to His Honour's notice by counsel immediately after sentence was pronounced.

36 I am unpersuaded by the submissions made on behalf of the applicant, McMillan. As to grounds 2 to 4 (manifest excess on Counts 1 to 3), Count 1 (trafficking in heroin) was a serious instance of trafficking. It involved numerous instances of trafficking over approximately five weeks. Whilst the total quantity involved cannot be ascertained with certainty, it was significant. On his arrest, the applicant was in possession of high purity heroin and equipment capable of being used to weigh, separate, dilute and package the drug for sale. Count 2 (trafficking in methylamphetamine) was also a serious instance of trafficking. It involved multiple instances of trafficking over a three week period. The quantities involved were in ounces rather than grams. The applicant was not reliant on the principal Alparslan to supply a purchaser for the drug. Count 3 (trafficking in temazepam) was clearly less serious than Counts 1 and 2, in terms of the nature of the drug and its quantity. However the conduct of the applicant as evidenced in the telephone intercepts showed that the applicant was persistent in his attempt to obtain the drug and that his persistence was rewarded. In the applicant's record of interview the applicant indicated a regular contact with Alparslan, a man he knew to be a significant drug trafficker. The applicant acknowledged assisting Alparslan in a number of ways to conduct his trafficking activities. He took phone messages for him, acted as a middleman by supplying Alparslan with heroin through third parties and introduced Alparslan to people to whom he could sell drugs. The applicant told police "I organised a lot for Alparslan". As to the individual sentences imposed, the learned sentencing Judge took into account the various matters in mitigation. No complaint is made to the contrary by the applicant. The learned sentencing Judge was entitled to give significant weight to general deterrence and less weight to rehabilitation in light of the type of offences and the criminal history of the applicant. In that regard, specific deterrence was also an important consideration. Each offence carried a maximum penalty of 15 years' imprisonment. The commission of each offence was aggravated due to the applicant being on parole at the time. It was clearly open to the learned sentencing Judge to pass the same sentences for Counts 1 and 2. They were equally serious. While it was open to the sentencing Judge to impose a lesser sentence on Count 3, the difference in offending in Count 3 was not so disparate from that in the other counts that the failure to impose a different sentence bespeaks specific error. Further, total concurrence was ordered.

37 As to grounds 6 and 7 - insufficient disparity between total effective sentence and non-parole period, and insufficient weight being given to rehabilitation - the non-parole period fixed represented 75% of the total effective sentence. Such a period was within the range. First and significantly the offences were committed by the applicant whilst on parole. The applicant was one month into a 6 month parole period when he committed the subject offences. The offences for which he was on parole included an offence of being in possession of prescribed drugs. The applicant had an extensive criminal history which included drug offences. The applicant had previously been afforded many opportunities by the courts to attempt to redress his offending behaviour in the community. He had previously received a without conviction bond, fines, two Community Based Orders (both of which he breached), an Intensive Correction Order (which he breached), and two suspended sentences (one of which he breached). The applicant had previously been sentenced on eight occasions to actual custodial sentences ranging in length from one month to 12 months. In all the circumstances, I consider the level of non-parole period fixed was well justified.

38 As to the error in relation to maximum penalty, it was drawn to His Honour's attention immediately after sentence was pronounced, His Honour having stated the incorrect maximum in his reasons for sentence. Plainly His Honour then adverted to the correct maximum. It would appear that His Honour concluded that the sentences were nonetheless appropriate. In that sense, this case is readily distinguishable from other cases where the sentence passed was vitiated by error. It is unsurprising that His Honour did not amend the sentence imposed, especially given the differential between it and the maximum provided by law.

39 I would dismiss the application of the applicant, McMillan.

40 For the third applicant, Savici, Mr Carter in comprehensive submissions on grounds 1 and 3 (manifest excess and inappropriateness of imposition of actual imprisonment) relied upon the following factors. First, the relatively limited criminality involved in the offences. On one date only, the applicant had acted as a courier for the target of the operation in relation to an unknown quantity of heroin in exchange for a small quantity (0.8 gram) of amphetamines. Further, the applicant was addicted to drugs at the time of the offences. The applicant made an early plea of guilty. It was entered at the committal stage. The reason summary jurisdiction was refused was to enable the same Judge to hear all matters in the County Court. The applicant had no prior convictions for drug offences. His prior convictions were relatively minor. He had endured an extremely difficult background, having fled Romania as a 17 year old, coming to Australia as a refugee in 1987 via Yugoslavia, his parents and sister remaining in Romania. Despite his background and having arrived in Australia with no English, the applicant had a strong work history. It was in the context of becoming unemployed in late 2001 that he had commenced using drugs. Following his arrest, the applicant had sought treatment and was placed on methadone, which he remained on at the date of sentence. Although the applicant did not attend for the Community Based Order assessment on 24 May 2004 (as had been ordered on 30 April 2004), or court on 2 June 2004, he had continued to report daily on bail; had subsequently attended at the County Court registry; was candid in relation to some pending shoplifting charges; had offered some explanation for his failure to attend connected to his transient existence; and as a result of the execution of the warrant issued on 2 June 2004, had (for the first time) served 10 days in custody. The prosecution did not call for a sentence to be served immediately, either at the initial plea or on the sentence date.

41 As to ground 2 (disposition), Mr Carter acknowledged that the "co-offenders" referred to were not co-offenders in the strict sense. Rather, they were all charged on the basis of offences linked to the target. However, Mr Carter submitted that the wholly suspended sentences imposed on March and Zambellakis were in respect of clearly more serious offences. March had highly relevant and recent prior convictions. Whilst each of them had assisted police, Mr Carter submitted that the sentence imposed on the applicant was manifestly disparate in all the circumstances. Wilkins, too, had committed more serious offences. He received a Community Based Order. Beyond stating in general terms that he considered the sentences imposed on "various co-offenders", Mr Carter noted that there is nothing in the reasons for sentence that illuminates the consideration of parity.

42 I am unpersuaded by the submissions on behalf of the applicant, Savici. In my view the individual sentences of imprisonment imposed were within range. It was open to the learned sentencing Judge in all the circumstances, to require the applicant to serve a portion of that sentence. The fact that the prosecution did not seek a custodial sentence did not preclude such a sentence being imposed. The learned sentencing Judge evidently had regard to the relevant matters in mitigation in imposing sentence. The applicant was not co-operative with the police when arrested. He initially gave a false name. In his record of interview he denied trafficking in heroin (Count 1) and gave a false account of how he came to be in possession of amphetamine (Count 2). The learned sentencing Judge was entitled to take into account the fact that the applicant failed to attend for the Community Based Order assessment without a satisfactory explanation and had re-offended whilst at large. These considerations were relevant in a number of ways to the exercise of the sentencing discretion. They bore upon the prospects for rehabilitation and the weight to be attached to that sentencing principle; justified weight being given to specific deterrence; and reduced the available sentencing options available to the learned sentencing Judge. There was nothing in the course of the further plea or sentence hearing that indicated that the learned sentencing Judge took the post-offence conduct by the applicant into account in any impermissible way.

43 As to ground 2 (disparity), the offenders March, Zambellakis, Anderson and Wilkins were not strictly speaking co-offenders of the applicant. Strict requirements of parity did not arise in those circumstances. It is clear however that the learned sentencing Judge took into account in a general sense, sentences that had been imposed on those persons and others on prior occasions. The fact that a different sentence was imposed in respect of this applicant as compared with others does not bespeak error. Finally, there were readily identifiable differences in the circumstances of each offender. Those differences in particular were that Anderson's prospects for rehabilitation appeared better than the applicant's given her age (25 years of age at sentence compared to the applicant who was 34 years of age) and more limited criminal history (six theft offences from a single Court appearance in 1996 as compared to the applicant's seven offences from three Court appearances between 1996 and 2002). The sentences of imprisonment received by March and Zambellakis whilst wholly suspended were significantly lengthier than the applicant's. The decision wholly to suspend such sentences was warranted given their respective undertakings to assist the authorities in the prosecution of then principal offender Levent Alparslan, and in March's case others also. Zambellakis had no prior convictions.

44 I would dismiss the application of the applicant, Savici.

45 Finally I turn to the application of the fourth applicant, Morais. Mr Carter appeared for this applicant also.

46 I turn first to the late filed application for leave to appeal against conviction. The short point for the applicant is that the offence to which the applicant pleaded guilty and for which he was sentenced did not exist in law at the relevant time. The offence was expressed thus on the presentment:

Thus at 27 November 2002 in s.5(1) there was no distinction made whether the firearm was registered or not and there was a single maximum penalty.

50 It is clear that the presentment was wrongly endorsed.[1] The offence was contrary to s.5(1), not s.5(1A). Both were indictable offences, although an offence contrary to s.5(1) was triable summarily. However in my view the error was immaterial[2] for the following reasons. There is no material difference in the definitions of the two offences: s.5(1A) is only invoked if the firearm was unregistered, whereas, s.5(1) is invoked whether the firearm was registered or not. The applicant was originally charged by police with the s.5(1) offence. He was committed for trial on that charge. At that time he reserved his plea to all charges. Nothing turns on the fact that s.5(1) was indictable triable summarily whereas s.5(1A) was indictable simpliciter. Due to the seriousness of the firearm offence committed by the applicant, the additional offences for which he was simultaneously committed for trial, and the nature and extent of his criminal history, it could not be said that the applicant was denied an opportunity of summary jurisdiction. The potential for summary jurisdiction was irrelevant given the seriousness of the offence, the history of the applicant and the context of offences for which he was committed for trial. Unlike in R. v. DD. this applicant pleaded guilty. The differential in the maximum penalties applicable was immaterial: the applicant was sentenced to only three months' imprisonment. In this case no duplicity or prejudice arose. It was a technical error of no substantive consequence.

51 Given that the error is technical only, I would order that the endorsement on the presentment be amended to read "(1)" rather than "(1A)" after "section 5".

52 I would dismiss the application for leave to appeal against conviction.

53 Finally I turn to the fourth applicant's application for leave to appeal against sentence.

54 Ground one is that that the sentencing Judge "erred by failing to consider and apply, adequately or at all, the totality principle".

55 In support of that ground it was submitted on behalf of the fourth applicant that the totality principle was offended in that the applicant had been sentenced on 15 April 2003 for indecent assault to imprisonment for two years nine months with a minimum term of two years' imprisonment; that more than two-thirds of the sentence imposed on this presentment was ordered to be cumulative upon the earlier sentence; and that all of the sentence on Count 2 was ordered to be served cumulatively upon the sentence on Count 1.

56 I am unpersuaded by those submissions. The individual sentences, the total effective sentence, and the degree of cumulation as between Counts 1 and 2 and with the sentence the applicant was already undergoing, were all within range. The offence of trafficking in Count 1 was a serious example of the serious offence of trafficking, the applicable maximum penalty for which was 15 years' imprisonment. A substantial amount of methylamphetamine was trafficked over a seven week period. The drug had a purity level up to 60%. General deterrence assumed considerable significance in a case such as this, as did specific deterrence in light of the repeated occasions in the past when the applicant had been sentenced to custodial sentences for drug trafficking. The sentence of two years imposed for this count was, if anything, lenient. The sentence of three months' imprisonment imposed on Count 2 was also lenient and in the circumstances appropriately the subject of total cumulation. A significant degree of cumulation between the total effective sentence the applicant was already undergoing was warranted. The offending in each instance was quite different and there was a need to give due weight to general and specific deterrence and just punishment. The need for a substantial non-parole period was manifest. The applicant's prospects for rehabilitation were unpromising. He had a lengthy and serious criminal history including many offences of drug trafficking. The present offences were committed whilst the applicant was on parole for trafficking in amphetamine.

57 I am unpersuaded that there was any breach of the totality principle in the case of this applicant.

58 Ground two of the application for leave to appeal against sentence is that the sentencing Judge erred in the fixing of the new non-parole period because His Honour acted on the basis that the 15 April 2003 non-parole period was two years and nine months, when in fact it was two years.

59 It is clear that His Honour erroneously stated that the 15 April 2003 non-parole period was two years and nine months. However there is nothing to indicate that the minimum term ordered by His Honour was ordered in error. In my view the minimum term ordered by His Honour, despite the error as to the 2003 sentence quantification, was amply justified. That is so for the reasons set out in paragraph 54 above.

60 I would dismiss the application by the fourth-named applicant for leave to appeal against sentence.

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