R v Mihalo and Ors [2002] VSCA 217

Court of Appeal (Vic)|2002-12-19|Before: PHILLIPS, C.J., CHERNOV and EAMES, JJ.A.

Criminal law - Sentencing - Trafficking in amphetamines and heroin - Attempted trafficking in a drug of dependence contrary to s.71(1)(b) Drugs, Poisons and Controlled Substances Act 1981 - Disparity - Whether findings open to sentencing judge - Whether sentences manifestly excessive.

I have had the benefit of reading the judgment of Eames, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

In my opinion, the appeal against sentence of each appellant should be dismissed for the reasons given by Eames, J.A.

These are appeals against sentences imposed by a judge of the County Court on 19 December 2001. Leave to appeal has been granted in each case by a judge of this Court.

Maria Mihalo and Nicolae Mihalo pleaded guilty to three counts on the presentment being counts of trafficking in a drug of dependence, namely methylamphetamine (count 1), trafficking in a drug of dependence, namely heroin (count 2) and attempting to traffick in heroin (count 3). Thanh Minh Vo was presented on count 3 only and pleaded guilty to attempting to traffick heroin.

Maria and Nicolae Mihalo received identical sentences as follows;

Count 1, trafficking methylamphetamine - three years six months' imprisonment.

Count 2, trafficking heroin - six months' imprisonment.

Count 3, attempting to traffick in heroin - four years six months' imprisonment.

The learned sentencing judge ordered that two years six months of the sentence on count 3 be served cumulatively with the sentence imposed on count 1, producing a total effective sentence of six years' imprisonment. His Honour ordered that a period of four years' imprisonment be served before being eligible for parole. His Honour declared pre-sentence detention in both cases of 335 days.

Thanh Minh Vo was sentenced to six years on count 3 for attempting to traffick heroin and a non-parole period of four years six months was fixed. A declaration was made as to 18 days' pre-sentence detention.

In the case of Maria Mihalo the grounds of appeal against sentence are as follows:

(1) That in all the circumstances the sentence imposed was manifestly excessive.

(2) That there was insufficient disparity between the sentence imposed on her and that imposed on her co-offender Vo.

(3) That the sentencing judge misdirected himself as to the maximum sentence applicable to count 3 on the presentment.

Nicolae Mihalo appeals on the following grounds:

(1) That the sentence imposed is manifestly excessive in all the circumstances.

(2) That the learned sentencing judge erred in not imposing a lesser sentence on him than on the co-accused Maria Mihalo, because of his lesser role in the offending.

(3) The learned sentencing judge erred in concluding that he ceased work in November 2000 and that he bettered his financial position because of his participation in trafficking.

The appellant Thanh Minh Vo appeals on six grounds as follows;

(1) The sentence imposed was manifestly excessive.

(2) The judge failed to give sufficient weight to the appellant's attempted co-operation with the police.

(3) The judge failed to give sufficient weight to parity.

(4) The judge erred

(a) in sentencing the appellant on the basis that the maximum penalty for attempted trafficking was 15 years' imprisonment rather than ten years;

(b) in failing to have regard to the fact that in respect of most if not all other offences in the criminal calendar the maximum penalty for an attempt is set at one level lower than the applicable penalty for the completed offence.

(5) The learned sentencing judge failed to have any regard to the fact that:

(a) the offence was an attempt as distinct from a completed offence;

(b) the offence could only be characterized as an attempt "to have in possession for sale" as opposed to other more culpable forms of trafficking;

(c) it is a less serious (and quite unusual) example of attempted trafficking to attempt to buy from a source than it is to attempt to sell to another;

(d) it was factually impossible to complete the offence in the circumstances.

(6) The learned judge erred in sentencing the appellant on the basis that he was "either a principal ... or acting as agent for a principal".

The circumstances giving rise to the offences may be briefly described.

Count 1 on the presentment alleged an offence of trafficking in amphetamines between 1 November 2000 and 19 January 2001.

On 1 November 2000 a covert police operative identified as "Mick" met with Maria and Nicolae Mihalo in the car park of the Red Rooster restaurant in Dandenong for the purpose, earlier agreed by telephone, of "Mick" purchasing six grams of amphetamine from Maria Mihalo. At that meeting "Mick" purchased six one-gram lots of amphetamine for $1,200 from Maria Mihalo. That was later found to comprise six grams of methylamphetamine with a purity of 35%.

On 17 November 2000 "Mick" met both Maria and Nicolae Mihalo in the car park of the Red Rooster restaurant and purchased one ounce (28 grams) of amphetamine for the sum of $4,000 from Maria Mihalo. That was later analysed to have a purity of 40%.

On 27 November 2000 "Mick" again met Maria Mihalo at the Red Rooster restaurant and purchased one ounce (28 grams) of amphetamines for the sum of $3,800 from Maria Mihalo. This was subsequently found to have a purity of 35%.

On 7 December 2000 "Mick" met with Maria and Nicolae Mihalo at the Red Rooster car park and purchased one ounce of amphetamine for the sum of $3,800 from Maria Mihalo. This was found to have a purity of 40%.

As to each of these instances which comprised the trafficking between dates alleged by count 1, the actual dealing with "Mick" was done by Maria Mihalo but, on all bar the occasion on 27 November 2000, Nicolae Mihalo was close by acting as lookout.

Count 2 alleged trafficking on a particular date, namely 13 December 2000. This was trafficking in heroin. During the course of his dealings with Maria and Nicolae Mihalo, "Mick" was advised that they also trafficked in heroin in addition to amphetamines and on 13 December 2000 he met Maria Mihalo at the Red Rooster car park where she handed him a sample of heroin on the basis that if he was satisfied with the quality that he would purchase more from them at a later stage. Nicolae Mihalo was also present acting as lookout. The heroin was weighed at 0.04 grams with a purity of 40%.

Count 3 related to trafficking in heroin in 19 January 2001. On Wednesday 17 January 2001 "Mick" had made contact with Maria Mihalo by telephone and she had asked him if he could supply her with a quantity of heroin because there was a shortage of heroin in the marketplace at that time. She requested eight to nine blocks of heroin and said she was willing to pay $55,000 per block. A block represents 350 grams (12.5 ounces) of compressed heroin. On 18 January 2001 "Mick" met Maria and Nicolae Mihalo at the Red Rooster restaurant car park. Maria Mihalo said that her supplier, "Minh" was having difficulty obtaining supplies of heroin and she asked "Mick" if he could source heroin for her so that she could provide it to Minh and all of them could make money in so doing. She discussed the profit which "Mick" and she might make and it was agreed that Minh should be asked to pay $75,000 per block. On a later occasion, "Mick" called Maria Mihalo and she confirmed that she wanted three blocks of heroin for Minh at a price of $75,000 per block.

On 19 January 2001 "Mick" went to the car park at the Red Rooster restaurant where he met Maria and where again Nicolae was present. On this occasion Thanh Minh Vo was also present and Mick was introduced to him. Maria, Nicolae and Thanh Minh Vo were all present when Vo asked to see and test the heroin and in response "Mick" arranged for another police covert operative "Hung" to come to the car park, which he did and produced what purported to be heroin. Vo said that he had money to pay for the heroin in his vehicle which was parked nearby. "Hung" opened one of the blocks of what was called "pseudo" heroin which he had brought to the car park and Vo was satisfied by his examination of it. The three appellants then left the car park and dropped Vo in the Dandenong area where he departed with another person to obtain the money to pay for the heroin. Maria and Nicolae Mihalo returned to the Red Rooster car park and waited for Vo's return. Whilst awaiting Vo and argument took place between Maria Mihalo and "Mick" over the price of the heroin, and it was agreed that a price of $65,000 per block would be the price agreed upon. Vo returned to the car park. Maria and Nicolae Mihalo were present but with Nicolae waiting across the road in his vehicle. Vo produced a large amount of money to pay to "Mick" and police attended the scene and arrested all three appellants. A search of Vo's vehicle located a sum of $150,050 in two plastic shopping bags and he had on him the sum of $10,000.

The appellants were interviewed by the police with Maria Mihalo giving no comment answers, and Nicolae denying his own involvement and implicating Maria Mihalo in some answers. Vo told police that the money was not his and that he was merely a courier having been given the money by a male person named Thanh and asked to deliver it to a person in the car park. He said he had not been told what the money was for and that he had been paid $10,000 for his efforts.

The Crown alleged that the street value of the amphetamines which had been purchased by "Mick" from Maria and Nicolae Mihalo was $49,000, approximately, with the actual purchase price paid by "Mick" being $12,800. The estimated street value of the heroin which the appellants had attempted to purchase was $1,005,000.

The prosecution case included telephone intercepts which had commenced from 3 November 2000 and continued to 10 November 2000 on a mobile telephone which was used by both Maria and Nicolae Mihalo. On 16 November police commenced further monitoring of another mobile telephone and that continued until 18 January 2001. That mobile was again used by both Maria and Nicolae Mihalo. A third mobile phone was monitored from 16 January 2001 to 22 January 2001 and that phone was again used by both Maria and Nicolae Mihalo.

The Crown asserted that the telephone intercepts disclosed that both Maria and Nicolae Mihalo extensively used the mobile telephones to assist their trade in drug trafficking. There were in total 248 telephone calls for the purposes of drug trafficking and the calls involved both Maria and Nicolae being contacted by persons requesting the purchase of amphetamines and heroin. Once orders had been placed for drugs and a price on occasions agreed to, a meeting place would be arranged and the transaction would take place with either or both Maria and Nicolae Mihalo attending. The Mihalos were available at all times day or night and traded mainly in the Doveton and neighbouring areas. It was alleged by the Crown that Maria and Nicolae Mihalo's sole income was trafficking in drugs during the relevant period of the offences. Their standard of living however was described as average.

In submissions on sentencing before the learned sentencing judge, the prosecutor advised the judge that each of the three counts carried a maximum of 15 years' imprisonment so that both for trafficking and attempting to traffick the maximum penalty was the same, and both offences carried, alternatively, a maximum fine of $100,000.

A ground of appeal common to both the appeals of Maria Mihalo and Thanh Minh Vo is that in sentencing the appellants the learned sentencing judge applied the wrong maximum penalty with respect to count 3, the count of trafficking in a drug of dependence. On their behalf it was submitted that the maximum penalty in this case should have been only ten years and not 15 years as his Honour had been informed. Counsel for Nicolae Mihalo did not support that argument.

In sentencing the appellants, the judge did not expressly refer to the penalty for attempted trafficking but made the following comment:

"I now wish to make some observations concerning these crimes. The crime of trafficking in a drug of dependence is regarded by the Parliament of this State as a serious crime. It carries with it a maximum penalty of 15 years' imprisonment."

His Honour on several occasions spoke of the offence of "trafficking" in amphetamines and heroin. Although his Honour did not expressly state that the maximum penalty for attempted trafficking was the same as for trafficking, it seems to me probable that his Honour, having been told that the penalties were the same, proceeded on that basis. It is now submitted on behalf of two of the three appellants that notwithstanding what the prosecutor said at the time, the maximum penalty for count 3 is only ten years.

The three counts on the presentment were brought pursuant to s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981. That legislation has undergone amendment from time to time which impacts on the contentions argued by counsel, and it is necessary to set out its history.

When the Act was enacted by the Parliament it provided by s.73(1) that "every person who trafficks in any drug of dependence shall be guilty of an indictable offence and liable to imprisonment for a term of not more than 25 years". By s.71 "traffick' was defined to mean "prepare, manufacture, sell, supply, deal or traffick without being authorised . . ." Thus, as drafted, the section dealing with trafficking made no provision, within its terms, for attempted trafficking, and provided a maximum penalty of 25 years imprisonment. The 1981 Act, however, did not commence to operate until 18 December 1983, and at the same time a new Part V came into effect by virtue of the Drugs, Poisons and Controlled Substances (Amendment) Act 1983. That amending legislation substituted the offence of trafficking in a drug of dependence by s.71(1) for the offence which had been created by the original s.73(1), but which provision had never, in fact, come into effect.

By virtue of s.70, which was inserted in Part V by the 1983 amendment, the word "traffick" was defined as follows:

"Traffick in relation to a drug of dependence includes - (a) prepare a drug of dependence for trafficking; (b) manufacture a drug of dependence; or (c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence."

"A person who without being authorized by or licensed under this Act or the regulations to do so trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence and liable - (a) where the court is satisfied beyond reasonable doubt that the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence - (i) to imprisonment for a term of not more than 25 years; and (ii) in addition to imprisonment, to a penalty of not more than 2500 penalty units; or (b) in any other case - to a penalty of not more than 1000 penalty units or to imprisonment for a term of not more than 15 years or to both that penalty and imprisonment."

As may be seen, s.71(1), when it came into effect in 1983, provided within its terms for both the completed offence of trafficking and for attempted trafficking, and did not distinguish as between such offences insofar as the maximum penalty was concerned, which, as to imprisonment, was 15 years. Although that provision suggests in its terms that the penalty is identical whether the offence under s.71 involves trafficking or merely an attempt to traffic, it is contended on behalf of the appellants that the penalty for attempting to traffick in heroin is governed by s.321P of the Crimes Act 1958.

The Crimes (Amendment) Act 1985 introduced a new Division 12 into the Crimes Act 1958. By s.321M an indictable offence of attempting to commit and indictable offence was created. The maximum penalties for attempting to commit an offence to were set out in s.321P. Under the heading "Penalties for Attempt" s.321P reads as follows:

"321P (1) A person convicted of attempting to commit an offence is liable - (a) unless the relevant offence is murder, to a penalty not exceeding the maximum penalty fixed or prescribed by law for the relevant offence; or (b) if - (i) a maximum penalty for the relevant offence is not fixed or prescribed by law; or (ii) the relevant offence is murder - to imprisonment for a term of not more than 15 years."

At the same time, s.321R was introduced, which reads as follows:

"(1) This Division applies to and in respect to an offence under any other enactment of attempting to commit an offence. (2) The preceding provisions of this Division do not apply to an attempt - (a) to aid abet counsel or procure the commission of an indictable offence; or (b) to commit the offence of conspiracy whether that offence is a statutory offence or an offence at common law."

Thus it may be seen that at the time when s.321P was introduced the penalty provision, whether it applied to an offence of trafficking in heroin or amphetamines or an attempt to do so, could have made no difference to the maximum sentence which was available for the offence, since the terms of s.321P(1)(a) provided that the maximum penalty which applied for an attempt was that which was the maximum provided for under the enactment for the completed offence, in this case 15 years imprisonment.

When the Sentencing Act 1991 was enacted, s.109 provided a scale whereby imprisonment of 150 months (i.e. 15 years) was deemed to equate to Level 4 punishment. By s.119 and Item 64 of Schedule 2 of that Act it substituted a new s.321P(1) for the existing section in the Crimes Act and the new section read, so far as relevant, as follows:

"(1) A person convicted of attempting to commit an offence is liable - (a) If the penalty for the relevant offence is set out by reference to an expression specified in column 1 of the Table, to the penalty set out opposite it in column 2 of the Table.

The table was then set out and provided that, if the penalty shown for an offence was level 4 imprisonment, then the maximum penalty for an attempt to commit that offence would be level 5 imprisonment. In other words, by reference back to s.109 it would be established that for an offence which carried a maximum of 15 years, an attempt to commit that offence would carry a maximum of 10 years' imprisonment.

Arguably, however, s.321P did not use an expressions set out in column 1 of the Table and if so paragraph (b) if Item 64(1) applied:

(b) if the penalty for the relevant offence is not set out by reference to an expression specified in column 1 of the Table in paragraph (a), to a penalty not exceeding 60% of the maximum penalty fixed or prescribed by law for the relevant offence for the offence; "

That paragraph, if it applied, would make the penalty 8.5 years, rather than 10 years for an attempt to commit an offence which carried 15 years maximum. It is not necessary to further explore this question because any doubt would appear to have been removed by the insertion of a new table to s.321P(1) by Item 94 of Schedule 1 of the Sentencing and Other Acts (Amendment) Act 1997 which provided, in effect, that where a maximum penalty of Level 4, i.e. 15 years imprisonment, was provided then the penalty for an attempt was Level 5, that is, 10 years maximum. The Table to s.321P(1) was further amended by s.23 of the Sentencing (Amendment) Act 1997 but again simply confirmed that where the maximum penalty was 15 years imprisonment then the penalty for an attempt was a maximum of 10 years. In any event, counsel for those appellants who advanced this argument contended that the maximum imprisonment available for an attempt to traffick a drug of dependency was 10 years. They did not seek to argue that it was a lesser period.

The Sentencing and Other Acts (Amendment) Act 1997 also amended the Drugs, Poisons and Controlled Substances Act and provided by s.41(1) that in lieu of the terms in which the maximum imprisonment penalty was expressed in s.71(1)(b), namely, "15 years imprisonment", there should be the following words "Level 4 imprisonment (15 years) and/or 1000 penalty units". Thus, at the same time, and by the same amending legislation which varied the wording of the penalty provision of s.71(1)(b), but otherwise left the penalty for an attempt to traffick untouched, at 15 years, Parliament had amended s.321P(1) of the Crimes Act to provide that for an attempt to commit an offence for which 15 years maximum imprisonment was provided the maximum penalty could be only 10 years imprisonment

The clear inference, in my opinion, must be that Parliament appreciated that although both provisions related to attempted offences, they had independent operation, and that Parliament intended that the offence of attempting to traffick in a drug of dependence should carry the same maximum penalty as for a completed offence. This, in my opinion, is a situation for the application of the maxim "generalia specialibus non derogant" (where there is a conflict between general and specific provisions, the specific provisions prevail)[1].

There are, in my opinion, good reasons why Parliament might have so intended. The definition of "traffick" is in itself so broad as to capture an incomplete attempt to pass drugs of dependency into the community so the distinction between a completed offence and an attempt may be difficult to discern on occasions. Furthermore, this is a category of criminal enterprise where, as in this case, many arrests are made by the employment of undercover law enforcement agents. Parliament might well conclude that in such circumstances the culpability of those who attempt to traffick drugs, but are thwarted in their attempt, may in some cases be no less than that of offenders who succeed in their endeavours to traffick drugs. There is, in other words, nothing illogical in treating attempted trafficking as worthy of the same maximum penalty as applies to a completed offence. The extracts of the Second Reading Speech[2] of the Minister of Health relating to the introduction of the amending legislation in 1983, to which we were referred, demonstrate clearly that it was a deliberate decision to have attempts dealt with in similar fashion to completed offences. The Minister noted that by proceeding in this fashion a jury which was not persuaded that the offence had been completed could bring in an verdict for attempted trafficking, where appropriate.

The assertion that the maximum penalty for trafficking was only 10 years , and not 15 years, is without substance, in my view, and the grounds for the appellants Maria Mihalo and Thanh Minh Vo which complained in that regard must fail.

For completeness, I mention one additional argument advanced by Ms Judd. Counsel for the respondent submitted that even if the penalty for attempted trafficking was not 15 years but ten years, then the Court should conclude that it had not been shown that the level of the maximum sentence would have had any bearing on the sentence imposed by the judge.[3] Even if the maximum had been 10 years imprisonment, counsel submitted, the sentence of 4 years and 6 months imprisonment was appropriate for Maria Mihalo and 6 years (with a non-parole period of 4 years 6 months) was appropriate for Vo.

In my view, it could not be said, however, that if the maximum sentence was, indeed, ten years then that fact was of no relevance to the sentencing by the judge. The penalties imposed would suggest that the maximum sentence must have been taken into account by the judge in fixing the sentences for all three offenders, and that his Honour accepted that to be 15 years. Had he been wrong in that belief then it would have been an error in the sentencing process calling for re-sentencing by this court.

Mr Shirrefs commenced with the second ground of appeal, and submitted that the role of Nicolae Mihalo in the offending was significantly less than that of his former wife, and that the sentence should have reflected that fact.

Mr Shirrefs submitted that on the evidence it was Maria Mihalo who initiated, controlled and arranged the drug trafficking. He submitted that it was she who made arrangements to meet "Mick", she who supplied the drugs, collected the money, dealt with other drug traffickers. He submitted that the evidence disclosed that Nicolae Mihalo's role was merely that of an "assistant" to his estranged wife in what was "her business". Mr Shirrefs referred to extracts from the covert tapes which he suggested showed that when she spoke to "Mick" Maria Mihalo said she and her ex-husband were "just working together" and that when speaking of the drug business used terms suggestive that she regarded it as her own.

The suggestion that Nicolae Mihalo was a more minor player in the drug trafficking than his wife is based, in part, on the fact that on the occasions when Nicolae Mihalo was present at the Red Rooster location he sat alone in his motor vehicle, some distance away from where his wife was negotiating with "Mick". In my view, that is entirely consistent with him acting as a lookout and it does not demonstrate that his role was any less significant than that of his wife.

Counsel contended that the telephone intercepts showed that Maria Mihalo dealt with 180 of the intercepted calls and the appellant with only 47, and that even when the caller was speaking in his own language, Nicolae would refer the caller to Maria to complete arrangements. In my opinion, the fact that his wife was the person who made more of the telephone and personal contacts with drug users and dealers does not necessarily indicate that the role of her husband was of less significance. What it might demonstrate is that her command of English and entrepreneurial ability better suited her for that role.

It was contended that equal justice required that there be an identity of outcome in cases that are relevantly identical but that there be different outcomes in cases that were different in some relevant respect.[4] The critical words are whether there is any difference "in some relevant respect" between Nicolae Mihalo and Maria Mihalo. Mr Shirrefs acknowledged that to succeed on this ground he would have to show that it was not open to the judge to have made the finding he did, as to their involvement. The learned judge did not think there was any relevant difference in their respective roles and in my view that conclusion was open to him. I am not persuaded that this ground is made out.

The next complaint, being ground 3 of Nicolae Mihalo's appeal grounds, was that it was not open to the learned judge to conclude that Nicolae Mihalo had ceased work in November 2000 on account of the income he was receiving from drug trafficking. Mr Shirrefs submitted that a letter from his former employer which was tended on the plea, and the contents of which were not disputed by the prosecutor, asserted that the appellant had lost his job in November 2000 due to a downturn in business and that he did not terminate his employment by his own choice. His Honour, he submitted, had used it as a factor of aggravation that the appellant had quit his employment in order to traffick in drugs.

There are several things that may be said about these contentions. In the first place, his Honour's comment arose directly from statements made by counsel during the course of the plea. Counsel who then appeared for Nicolae Mihalo submitted that the appellant had been employed from the time he arrived in Australia in 1999 until two months before his arrest, when he had lost his job. His Honour noted that the period of trafficking to which he pleaded guilty coincided with the period over which he was out of work and asked "What am I to make of that? Counsel responded: "Obvious conclusion one can draw both ways, and its a wonderful thing called coincidence. It does happen sometimes". His Honour replied: "I think I should say for the record you had a wry smile on your face (counsel)". That in my view amounts to a concession by counsel that his Honour was entitled to conclude that the drug trafficking coincided with a decision to remain out of work. In fact, his Honour's conclusion that he "ceased work" does not indicate that he had concluded that he deliberately chose to stop work. Thus, the suggestion that his Honour made a finding, contrary to the evidence, that he had quit his job voluntarily when, in fact, he had been dismissed, cannot be sustained.

In any event, I am not persuaded that his Honour's observation had any adverse impact on the sentence that was imposed. Whether he quit work in order to traffick drugs, or trafficked drugs after being retrenched seems to me to have been a matter of no moment at all to the judge in sentencing the appellant. The comment seems to me to have been little more than an observation linked to the comment which immediately followed it, namely, that whilst he was unemployed he was a significant contributor to the trafficking business over that period. The comment by his Honour seems to me to have been a passing observation which he was perfectly entitled to make, and which did not manifest error, at all.

Another complaint under ground 3 concerned his Honour's finding that it was impossible to believe that the appellant did not better his position financially as a result of his criminal conduct. Mr Shirrefs contended that that comment was not open, because there was no evidence of enrichment.

This comment must also be considered in light of the submissions on the plea. It was submitted by his then counsel that the appellant somehow became involved in drug trafficking with his estranged wife, from whom he had been separated for six months, in order "essentially to support or be with his wife" and was seeing her in order to try to achieve a reconciliation and to assist her to overcome a gambling habit. Counsel submitted that there was no evidence to show that he got anything out of the crimes and his Honour asked, in effect, and quite reasonably, why if he was so keen to address his wife's gambling addiction he did not consider more conventional therapy than assisting her to conduct drug transactions.

His Honour's observation seems to me to have been entirely apt. The absence of evidence of enrichment does not mean that his Honour has to conclude that the appellant's position was not bettered financially at a time when he was unemployed and when even on his own account he was assisting his wife in a lucrative business. The submissions to the judge really strained credulity. But even if he had not yet benefited from the trading in drugs the evidence disclosed that there was an anticipated business involving vast quantities of drugs, the anticipation only failing to become reality because "Mick" was an undercover police officer. The estimated street value of the heroin which the appellants had intended to purchase from "Mick" was more than a million dollars.

As to the complaint that the sentence was manifestly excessive, counsel pointed to the lack of prior convictions, the pleas of guilty and what were said to be good prospects of rehabilitation, amongst other matters. It was contended that the total effective sentence was disproportionate to the totality of the offending.[5]

Mr Shirrefs, in an argument which was adopted by counsel for the other appellants, submitted that the circumstances of count 3 were unusual in that they really amount to "have in possession for sale" rather than traffick, because, unlike the usual situation for such offences, the appellants were endeavouring to purchase heroin, rather than to sell it. I can not see how the seriousness of the offence is diminished on that account. The mere fact that the trafficking (which it is admitted to be) arises at one stage of an illegal business process rather than another, when the ultimate objective is that the drug be traded on the street, seems to me not to be a mitigatory factor at all. In this case it was a neutral factor. Likewise, the contention that count 2 involves only a small quantity of heroin seems to me not to be a mitigatory factor, or at least, not to be a factor which merited greater weight than his Honour gave to it. It was a small quantity because it was a sample, which was intended to encourage an ongoing business with "Mick".

Nicolae Mihalo was aged 36 years at the time of sentence and had no prior convictions. The learned judge had regard to all of the matters put to him by counsel in mitigation of sentence and I am not persuaded that the sentences imposed individually or together constitute a manifestly excessive sentence.

In my view, none of the grounds of appeal concerning Nicolae Mihalo has been made out and his appeal against sentence should be dismissed.

Vo pleaded guilty to the one count , count 3, presented against him.

Mr Croucher abandoned grounds 2 and 6 of the grounds of appeal by Vo.

As an alternative argument on ground 4 counsel submitted that even if his contentions were wrong as to the maximum sentence applicable to attempted trafficking the learned sentencing judge should nonetheless have taken into account that for most other criminal offences an attempt to commit an offence which carried a maximum of 15 years imprisonment for a completed offence would carry only a maximum of 10 years imprisonment.

I am unable to agree that that was a relevant matter to which the judge should have given weight. For the reasons discussed, above, Parliament has chosen to provide the same maximum penalty for attempted trafficking as for trafficking. It would be inappropriate for a sentencing judge to ignore the maximum sentence which Parliament has imposed for this offence, and to have regard, instead, to the maximum penalties imposed for other offences which Parliament has deliberately chosen not to apply in the case of attempted trafficking. In addition, I reject the contention that an attempt to traffick should have been regarded by the judge as necessarily requiring a lesser sentence than would be the case for a completed offence. That argument was based on the fact that s.321P provided that the maximum sentences for all the offences to which it applied were significantly less than for completed offences. For the reasons I have given, it would be open to a court sentencing on a trafficking count to conclude that, in the circumstances of a given case, an attempted trafficking was no less serious than if the offence had been completed. The sentence imposed in this case on count 3 does not manifest any error in approach in this respect. This was an attempt to sell three blocks of heroin for which Vo was to pay $65,000 per block, and he had more than $160,000 with him to effect that purchase through the Mihalos and "Mick". Count 3 was a very serious offence.

On ground 5 Mr Croucher made similar submissions to those made by Mr Shirrefs, as to the "unusual" feature, that count 3 was concerned with an attempt to buy, not to sell, heroin. I reject this argument for the reasons stated earlier. I reject, too, the argument that the offence here was "impossible" to be effected because the only drugs were pseudo drugs supplied by police to lure the offenders. The attempt was to traffick in heroin, in considerable quantities. The factor of "impossibility", in my opinion, does not reduce the culpability of the appellant's conduct.

As to ground 1, the complaint that the sentence was manifestly excessive, Mr Croucher submitted that insufficient weight was given to the plea of guilty and his heroin addiction. His Honour justifiably called the appellant a man of poor character. He admitted 44 convictions from 8 court appearances between 1986 and 1999. He had 8 convictions for drug offences, including 3 convictions for trafficking a drug of dependence. He had been sentenced to imprisonment on a number of prior occasions. The appellant was aged 33 at the time of sentencing. His Honour took into account that Vo had cooperated with police and had assisted law enforcement authorities in the investigation of other drug offenders.

In my opinion, the sentence imposed on Vo, having regard to the quantities of heroin he believed he was going to purchase on this day, and to his prior record, is not manifestly excessive and his appeal should be dismissed.

Ground 2 of Maria Mihalo's grounds of appeal was abandoned.

As to ground 3 Mr Pearson adopted the submissions of Mr Croucher as to the maximum sentence for attempted trafficking, and I reject this ground. He also adopted the arguments of other counsel as to the "unusual" nature of count 3, and the relatively small quantity of heroin involved in count 2 and added that the quantity of amphetamines in count 1 was also small, being some 90 grams. None of those arguments persuade me that there was any error in the sentences imposed.

In my view, the fact that the quantities here are small is of little consequence. Obviously if the quantities had reached the level of commercial trafficking then the penalties would have been substantially greater, but the trafficking identified by the conduct to which each of these counts related, in my view, cannot be treated as so limited as referable only to the actual quantity of drugs which was exchanged. The criminal behaviour as reflected by the count demonstrated that the appellant was a significant trader in amphetamines. Furthermore, count 2 occurred in circumstances which reflected that the sample of heroin was merely a foretaste of quantities of heroin which would subsequently be provided. As to count 3, the mere fact that the trafficking was one step back in the process of distribution to the street seems to me to make no difference at all to the seriousness of the offending conduct.

On behalf of Maria Mihalo it was contended, under ground 1, that the sentence was manifestly excessive, having regard to the fact that she had no prior convictions, was aged only 31 at the time of sentence, was addicted to amphetamines and gambling, and had taken part in programs of drug rehabilitation whilst in custody. Furthermore, she had entered pleas of guilty to the offences.

His Honour accepted that Maria Mihalo had participated in drug rehabilitation programs while in prison but noted that attempts to deal with her gambling addiction were less successful. The fact of addiction to gambling, like addiction to drugs, is not usually to be regarded as a mitigatory factor when dealing with offences of such seriousness[6]. Such weight as might properly be given to that factor was given by his Honour to the appellant, and his Honour had regard to the report of forensic psychiatrist Dr Mark Taylor and to submissions made on the appellant's behalf as to her addictions. His Honour regarded her prospects of rehabilitation as being reasonable.

It was submitted that there was no evidence that she actually made money from the transactions, in the sense that she gambled all she had been paid by "Mick", which amounted to $12,800 for amphetamines valued at $49,000 on the street. In my view, it would not matter whether the financial benefit was dissipated in that way (and whether it was, is mere speculation, in any event). The criminality of the conduct is not mitigated to any significant degree by that fact, if it be so.

Notwithstanding all the matters put on behalf of the appellant Maria Mihalo I am not persuaded that the sentence was manifestly excessive. She was engaged in drug dealing on a substantial scale over this relatively short period, and the sentences seem to me to have been well within appropriate range in the exercise of the judge's discretion.

In my opinion, the appeal against sentence by Maria Mihalo should be dismissed.

The appeals against sentence by each of the three appellants should be dismissed.

[1] See "Statutory Interpretation in Australia", by D.C. Pearce and R.S. Geddes, 4th Ed 1996, at 109-111.

[2] Second Reading Speech, Hansard. Assembly, 21 September 1983, at page 794, Mr Roper, Minister of Health.

[3] See R. v. Minh Tanh Ma, Court of Appeal, 18 March 1998; R. v. Maher 21 May 1998.

[4] See Wong v. R. [2001] HCA 64; (2001) 76 A.L.J.R. 79 at 92; Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606.

[5] See Mill v. The Queen (1988) 166 C.L.R. 59; Pearce v. The Queen (1998) 194 C.L.R. 610.

[6] See R v Martin (1994) 74 A.Crim.R. 252; R v Cavallin, unreported Court of Appeal, 24 July 1996; R v Dawsan , unreported Court of Appeal, 27 May 1997.

Other Acts (Amendment) Act 1997

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Judgment (98 paragraphs)

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