R v Otene [1998] VSCA 92

Judgment (5 paragraphs)

[1]

The applicant was 36 at the time of sentence. He had eight prior convictions from two court appearances in 1992 and 1994. These included one for possession of and one for using a drug of dependence. The judge described his prior convictions as demonstrating to some extent an anti-social attitude, but as of minor significance in relation to the offences for which he was to be sentenced. Evidence on the plea was given by the applicant's wife and from his former employer.

[2]

On behalf of the applicant, Ms Lieder has not attacked any of the individual sentences. This is not surprising, in view of the quantities of the drug the subject of the offences and the applicant's role. The judge described him as the Victorian Distribution Manager, a finding which was appropriate and has not been challenged. It was he who was to distribute in Victoria the whole of each of the two consignments the subject of the counts. Ms Lieder's submission is that the sentences on the two counts of trafficking should have been made wholly concurrent. It is said that, although the applicant participated in two separate activities relating to trafficking in amphetamine, the course of conduct was the same in each case. I cannot accept this contention about concurrency. Not only was it open to the judge to order partial cumulation, but it would have been wrong not to do so. Trafficking in the first quantity was a very serious offence. Trafficking in the second quantity was a further very serious offence and one for which the sentence passed strikes me as moderate. Complete concurrency would not have marked the gravity of the applicant's criminal conduct in trafficking in these two large quantities of amphetamine. Moreover, it is wrong to say that in the two cases the course of conduct was the same. In the first case it was Vinall who brought the drug down from Queensland: the applicant collected it at Maguire's home. In the second case it was the applicant who made the arrangements which resulted in the transport of the amphetamine from Queensland to Epping, where the applicant took delivery of it, having monitored its progress.

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Judgment (5 paragraphs)

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