R v Tezer; R v Davis [2007] VSCA 123

2 For the reasons given by Habersberger AJA, I agree that in the case of Tezer leave to amend his grounds of appeal should be granted and that in both cases the appeals against sentence should be allowed. I also agree with Habersberger AJA, for the reasons his Honour gives, that upon re-sentencing no different sentence should be imposed, in either case, to that imposed by the learned sentencing judge.

3 On 28 October 2005, Rasim Tezer and Rodney Craig Davis each pleaded guilty before the County Court at Melbourne to one count of trafficking in a drug of dependence, namely methylamphetamine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence. In the case of Tezer the period of trafficking was between 28 January 2003 and 11 March 2003 and in the case of Davis it was between 10 September 2002 and 11 April 2003.

4 After hearing pleas in mitigation of penalty on behalf of Tezer on 1 and 2 May 2006 and on behalf of Davis on 1 May 2006 the learned judge, on 11 May 2006:

(a) sentenced Tezer to imprisonment for 2 years and 6 months, with a non-parole period of 18 months and ordered that a mobile telephone be forfeited; and

(b) sentenced Davis to imprisonment for 3 years and 6 months, with a non-parole period of 2 years and 6 months and ordered by consent that Davis pay a pecuniary penalty of $5,000.

5 Each of the appellants was granted leave to appeal against sentence on 29 September 2006.

Background

6 Both of the appellants were arrested following investigative operations by the Victoria Police Major Drug Investigation Division over an extended period of time into the trafficking and manufacturing of amphetamines. The investigation found that chemicals were supplied by certain criminals to two brothers who manufactured the amphetamine. At the conclusion of that process large quantities of amphetamine were delivered by the "cooks" to the suppliers of the chemicals, but they also kept a substantial amount of amphetamine to on-sell themselves. One of their buyers was Noel James Laurie, who then sold to various persons, including Davis, who also introduced an undercover police operative "John" to Laurie. Davis made a number of sales to the covert operative John. Tezer was utilised by Laurie as "muscle" on two large sales to Davis and John. Laurie was subsequently sentenced by the same judge to imprisonment for 6 years and 6 months for his role in trafficking a large commercial quantity of methylamphetamine and to imprisonment for 18 months for trafficking cannabis, of which 9 months was to be served cumulatively. His Honour fixed a non-parole period of 5 years.

7 Rasim Tezer was born in Turkey on 17 May 1957. He came to Australia when he was seven years of age. Like his migrant parents, Tezer had been a hard working man. He had held various positions such as storeman, slaughterman, driving instructor in his own business and caterer. An injury to his arm appeared to cause him difficulties in his working life. He separated from his wife, with whom he had two children, a daughter aged 21 and a son aged 17 at the time of sentencing. His son was a friend of Laurie's son and Laurie and his wife provided hospitality, friendship and support when Tezer was unemployed and lonely.

8 The learned sentencing judge found that Tezer acted as Laurie's minder or "muscle" in two drug transactions receiving on each occasion $32,000 from the covert operative John on behalf of Laurie. On the first occasion, on 28 January 2003, 226.8 grams of powder with 50% purity was handed by Laurie to John when Tezer and Davis were also present. On the second occasion, on 11 March 2003, Tezer handed 223.7 grams with 80% purity to John, when Laurie and Davis were present. The total amount of methylamphetamine involved in these two transactions was 292.36 grams, which amount exceeded the prescribed commercial quantity (250 grams). There was no evidence that Tezer had any involvement in the drug trade prior to his association with Laurie or that he gained any financial advantage from his role. Nor was he a user of drugs. He had no prior convictions.

9 Tezer was arrested in April 2003. Following a "no comment" interview, he was charged and remanded in custody. He was released on bail on 10 July 2003.

10 By notice dated 7 February 2007, Tezer applied to amend his grounds of appeal by adding a further two grounds. Leave was sought to replace ground 2 with proposed ground 5. The five grounds of appeal were as follows:

1 (a) The learned sentencing judge erred by denying the appellant procedural fairness in that he made findings as to the appellant's role in the trafficking offence that were significantly more serious than the position presented and accepted at the plea.

(b) If the judge intended to sentence on that basis counsel for the appellant should have been given the opportunity to address on that issue.

2. The learned sentencing judge erred in failing to take into account the fact that the appellant would almost certainly lose his property pursuant to the automatic forfeiture provisions of the Confiscation Act 1997.

3. In all the circumstances the head sentence of 2 years 6 months and the non-parole period of 18 months are manifestly excessive. Specifically, the sentencing judge did not give any or any sufficient weight to:

(a) the plea of guilty at the earliest possible opportunity;

(b) the appellant's lack of prior criminal history;

(c) the fact that the appellant did not gain anything from his involvement in the offence;

(d) the delay in bringing the case to trial; and

(e) the appellant's prospects of rehabilitation.

4. The learned sentencing judge erred in finding that the role of the appellant in the offending was greater than the co-offender Davis' role, in that he acted with Laurie as a distributor of the drug, receiving it on a regular basis and setting the price and providing it to sellers.

5. The appellant seeks to lead fresh evidence, in the form of affidavit material, as to the actual state of affairs in respect to his property which, at the time of sentence, had been the subject of an automatic forfeiture order under the Confiscation Act 1997, so as to demonstrate that a lesser sentence should now be passed.

11 Rodney Craig Davis was born on 13 September 1965. Davis had 20 prior convictions, including convictions for minor drug offences involving cannabis in 1992. Most of the prior convictions were, however, for offences such as breaches of an intervention order, stalking, assault and causing criminal damage, which all resulted from the breakdown in 1999 of a relationship with a woman, with whom he had two children, a son aged 15 and a daughter aged 11, at the time of sentencing. After the relationship broke down, Davis returned to live with his mother.

12 Davis had worked for a number of years as a tow truck driver. He began buying amphetamines in order to keep himself awake for his work. He then graduated to buying amphetamines for others. His supplier was Laurie. The learned sentencing judge found that Davis was in regular contact with Laurie by telephone before and during the period covered by the charge in order to obtain and sell amphetamine. The judge described Davis as "a busy salesman, actively seeking customers and sales".

13 The learned sentencing judge found that in the relevant period there were seven transactions in which Davis made sales of methylamphetamine to the covert operative, John. The details of the sales were as follows: on 10 September 2002, 43.8 grams of powder with 60% purity for $10,000; on 19 September 2002, 26.1 grams with 70% purity for $5,000; on 15 October 2002, 27.6 grams with 70% purity for $5,000; on 15 January 2003, 27.8 grams with 80% purity for $5,000; on 28 January 2003, 226.8 grams with 50% purity for $32,000; on 6 March 2003 a sample of 2 grams of a new batch of methylamphetamine with 80% purity; and on 11 March 2003, 223.7 grams with 80% purity for $32,000. The total quantity of methylamphetamine involved in these seven transactions was 380.07 grams, which amount significantly exceeded the prescribed commercial quantity (250 grams). The judge concluded that Davis was "active on the telephone to both the supplier and the customer and in travelling the suburbs both to set up the transactions and to bring them to fruition."

14 Davis was a user of amphetamine. On at least one occasion he purchased some of the drug back from John at a cost of $200 per gram. At the plea his counsel argued that "financially there was very little in it for Mr Davis, except to obtain free or cheaper amphetamines to feed his own soaring habit". Davis had told John that he made a profit of $200 per ounce. Thus, out of the $89,000 paid by John for the sales arranged by Davis he would have made a profit of $4,200. The learned sentencing judge said in his reasons that on the information available to him he was unable to form a judgment about this submission. His Honour noted, however, that there was no evidence that Davis had amassed significant personal assets or that he enjoyed a "lavish lifestyle".

15 Like Tezer, Davis was arrested in April 2003 and, following a "no comment" interview, he was charged and remanded in custody. He was released on bail on 15 July 2003.

16 Davis' grounds for appeal were as follows:

1. The learned sentencing judge erred in failing to place any weight on the delay between the commission of the offence and the sentencing of the appellant.

2. The learned sentencing judge erred in that he made findings of fact to the prejudice of the appellant which were not open to be made in relation to the purpose of, level of and benefit derived from trafficking.

3. The learned sentencing judge erred in that he failed to appropriately apply the principles of parity between the co-accused Tezer and the appellant.

4. In all the circumstances the head sentence of 3 years 6 months and the non-parole period of 2 years 6 months are manifestly excessive. The sentencing judge did not give any or any sufficient weight to:

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

(b) the appellant's prospects of rehabilitation;

(c) the limited gain to the appellant from his involvement in the offence;

(d) the age of relevant prior criminal history;

(e) the appellant's remorse.

Tezer - Ground 1 and Proposed Ground 4 - Degree of criminality

17 These grounds concern the meaning of a passage in the learned judge's reasons for sentence. Counsel who appeared for Tezer on the appeal, submitted that at the plea it was put by the prosecution that Tezer's criminality was on the same level or slightly less than that of the co-offender Davis. Tezer was said to be the friendly and reliable "muscle" used by Laurie on two occasions to ensure that the transactions went smoothly, whereas Davis was an active salesperson of drugs supplied by Laurie. At no stage did the learned sentencing judge indicate during the plea that he disagreed with the description of Tezer's role by the prosecutor or defence counsel. Yet, it was submitted, at paragraph [35] of the reasons for sentence, the learned judge found that the level of Tezer's involvement was "significantly higher" than that of Davis, in that Tezer was a person who acted, together with Laurie, as:

(a) the distributor of the drugs, who received them from the manufacturer on a regular basis,

(b) who determined the price of sale to consumers,

(c) who provided the drugs to a person such as Davis to pass on to the purchaser, and

The word "as" was added by counsel who suggested that his Honour had omitted it by mistake. As I shall discuss, the inserted word inappropriately changes what his Honour said and intended to say. Nevertheless, counsel submitted that these findings were not supported by the evidence. Alternatively, it was submitted that by making the findings without any indication to counsel of his intention to do so, the learned sentencing judge denied Tezer procedural fairness.[1]

18 I do not agree with these submissions. In my opinion, they involve a fundamental misreading of what his Honour was saying in the relevant passage. In order to understand the context I set out below the paragraph preceding and that following the relevant passage in his Honour's reasons for sentence in respect of Tezer:

"On a superficial assessment of your role it might be thought that you have played a much less active role than that of Mr Davis. As your counsel, ... submitted, there is nothing in the evidence to which reference was made to suggest a greater involvement than in the two transactions in January and March 2003.

It is, however, the level of your involvement that distinguishes you from Mr Davis. His level in the structure of the criminal enterprise was that of a person making sales to the drug user. Your level was significantly higher than that. It was as a person acting, together with Noel Laurie, the distributor of the drugs, who received them from the manufacturer on a regular basis, who determined the price of sale to consumers and who provided the drugs to a person such as Mr Davis to pass on to the purchaser and who received the payment for those drugs.

It was at that level that it might be expected that substantial profits were to be made. That was the level where you were involved. You had been a friend of Mr Laurie's for some time. You knew that he was involved in the distribution of substantial quantities of illegal drugs. Your services were sought, it appears, when a larger sale was to be made. Although your role may appear to have been largely passive, it was that of a classic aider and abetter. You were present to provide assistance, if required. You acted to assist Laurie to take possession of the cash and by instructing the purchaser to deal directly with you or with Laurie for future transactions. Although you were involved with fewer transactions than Mr Davis your involvement was at a higher level of the criminal enterprise, and I do not consider your criminal culpability to be less than that of Mr Davis."

19 As counsel for the respondent submitted, the conduct described by his Honour after the mention of Laurie was clearly intended to refer to Laurie and did not purport to be a description of Tezer's role. By incorrectly adding the word "as" in her reading of the relevant passage, counsel for the appellant changed the meaning of what I consider the learned judge was saying. In my opinion, his Honour quite correctly described Tezer as an aider and abetter of Laurie in the latter's unlawful activities. Tezer was present to provide assistance, if required, in the two transactions involving the larger sums of money.

20 Further, in my opinion, the learned sentencing judge correctly pointed to the higher level at which Tezer was operating in the structure of the overall criminal enterprise, compared to that of Davis, whilst acknowledging that Tezer's role at that level was much less active than Davis' role at his lower level. His Honour therefore concluded that Tezer's criminal culpability was not less than that of Davis. In my opinion, there can be no criticism of this conclusion concerning Tezer's criminal culpability.

21 The submissions that his Honour had made factually incorrect findings about Tezer's role in the trafficking and that he had denied Tezer procedural fairness by not giving his counsel an opportunity to address on that issue must therefore fail.

Tezer - Ground 2 and Proposed Ground 5 - Forfeiture of unit

22 Leave was sought to replace ground 2 with the proposed ground 5 as it was said that the former ground did not properly address the issue. What was disclosed in the affidavit of Tezer's solicitor, sworn on 6 February 2007, was that Tezer had, in about 2002, inherited a unit at 1/28 Richmond Street, Glenroy upon the death of his mother. At about the time probate was granted in 2003, Tezer transferred to his sister a 20% interest in the property which was then valued at $130,000. On 30 July 2003, a restraining order under the Confiscation Act 1997 was made in the County Court. Pursuant to s 35 of that Act the offence to which Tezer pleaded guilty was an automatic forfeiture offence. Despite Tezer giving instructions to his former solicitors that he wished to contest any confiscation proceedings in relation to the unit, no application was made on his behalf for an exclusion order under ss 20, 22 and 35 of the Confiscation Act within 60 days of his pleading guilty. Tezer had since been advised by his current solicitors that the outcome of any application to extend the time for the filing of an application for an exclusion order or other remedies to avoid confiscation was uncertain.

23 The respondent opposed the appellant's application to rely on his solicitor's affidavit. Counsel submitted that it did not contain fresh evidence. In his reasons for sentence his Honour had referred to the fact that the unit was subject to a forfeiture order and that Tezer's sister would be making an application to have the unit excluded from the order. Moreover, the consequences for Tezer of his offence being an automatic forfeiture offence under the Act were or should have been known to his legal advisers.

24 Counsel for Tezer submitted that because he had not made an exclusion application under s 22 of the Confiscation Act within 60 days of his pleading guilty in October 2005, the unit had been automatically forfeited to the Minister pursuant to s 35 of the Act. Pleading guilty at the arraignment in October 2005 was a conviction of Tezer for the purposes of s 35(1)(e) of the Confiscation Act.[2] It was then submitted that there was no avenue for Tezer to make an exclusion application "out of time". Counsel further submitted that the unit had been lawfully acquired by Tezer and there was no suggestion that it was tainted property. The prosecution had not alleged that the unit had been used or that it was intended to be used in or in connection with the offence, nor that it was derived in any way from property connected to the offence. Counsel accepted that if the unit was not tainted property then the judge was expressly prohibited by s 5(2A)(e) of the Sentencing Act 1991 from taking the automatic forfeiture into account. As she observed, this prohibition was presumably based on the assumption that if the property is untainted, a successful exclusion application will be able to be made. However, as counsel further submitted, although at the time of the plea Tezer had lost his unit due to the operation of the Confiscation Act, he could not properly ask the learned sentencing judge to have regard to the automatic forfeiture as to do so would have been an admission that the property was tainted, when Tezer's position was that it was not.

25 As neither side was suggesting to the learned sentencing judge that the unit was tainted property, it is quite clear that by virtue of s 5(2A)(e) of the Sentencing Act his Honour could not take the automatic forfeiture into account when sentencing Tezer. Therefore, in my opinion, no complaint can be made about his Honour's sentence in this regard. On the other hand, even if the unit were tainted property, in my opinion, no error was demonstrated by his Honour failing to take the forfeiture into account in mitigation of penalty. The learned sentencing judge was simply unable on the material before him to decide whether Tezer would suffer the hardship of forfeiture. His Honour was told that Tezer's sister would be making an application for exclusion of the unit. Such an application could be made under s 51(1) of the Confiscation Act, even if it is out of time (s 51(3) of the Act). His Honour was in no position to decide the likely outcome of that application. As Nettle JA said in R v Tabone:[3]

"... there is no reason in principle to conclude that a sentencing judge commits a material error by failing to take into account in mitigation of penalty a possibility which the judge is unable on the evidence to quantify or estimate. ...

The 1997 Act introduced automatic forfeiture and automatic pecuniary penalty orders in the case of Schedule 2 offences. Therefore, under the 1997 Act, there are likely to be a lot of cases, such as Phillips and Le and Nguyen, where the effects of automatic forfeiture and pecuniary penalty are able to be assessed by a sentencing judge with relative certainty before final orders have been made.

In this case, however, the state of the evidence was such that it was still not possible to make an assessment of the likely effects of automatic forfeiture, and therefore the position was in principle no different to the position under the 1986 Act. Absent some basis in fact on which to assess the likely results for the offender, any attempt to assess the effects was bound to be speculative and consequently of minimal utility.

It may be added, generally speaking, that if a sentencing judge is to make anything of the effects of automatic forfeiture, it is incumbent on the offender to adduce evidence of the likely effects of the forfeiture, and, obviously, mere assertions from the bar table or otherwise are not evidence. In the absence of that sort of evidence, there will be no error in a judge declining to take the effects of forfeiture into account."

26 As far as this Court is concerned, the state of uncertainty remains even if the application to rely on the solicitor's affidavit were granted. The likely outcome of any application by Tezer's sister cannot be predicted, particularly given that it would seem that an extension of time to make the application is required. If the application by the sister were successful, then according to the majority decision of this Court in Director of Public Prosecutions v Phan Thi Le[4] the whole of the property the subject of the restraining order is excluded. Special leave to appeal this decision to the High Court of Australia has, however, been granted to the Director. A further factor which adds to the uncertainty is that if Tezer were to forfeit his 80% interest in the unit he would presumably have a claim against his former solicitors for allegedly failing to advise him of the need to make his application for exclusion in time.

27 Leave to amend his grounds of appeal should be granted to Tezer. Further, it seems to me that in the circumstances the application to lead fresh evidence should be granted in order that more of the relevant facts surrounding the question of forfeiture are before the Court,[5] but that the ground of appeal based on the possible forfeiture of Tezer's interest in the unit should be rejected because of the uncertainty surrounding whether or not Tezer will eventually suffer the hardship of losing the value of his interest in the unit.

28 Before dealing with Tezer's final ground of appeal I turn to consider some of Davis' grounds of appeal.

Davis - Ground 2 - Purpose of, and Benefit from, Trafficking

29 Counsel who appeared on behalf of Davis on the appeal submitted that the learned sentencing judge erred in not finding on the balance of probabilities that Davis received little financial benefit from the drug sales and that the purpose of the drug sales was principally to finance his own addiction. Counsel submitted that the only evidence of the amount of profit being made by Davis was his admission to the covert operative, John, that he made $200 per ounce. He further submitted that the learned sentencing judge inferred a level of trafficking which was not made out on the evidence and sentenced on a basis which did not reflect that Davis had trafficked for personal use. Counsel submitted that his Honour fell into error by placing undue emphasis on the additional sales to persons other than covert operative John and in not making a finding that the purpose of Davis' trafficking was in some way related to sustaining his drug habit.

30 Counsel for the respondent submitted that it was part of the prosecution case that, in addition to the sales made by Davis to covert operative John, there was evidence of other trafficking engaged in by Davis during the period covered by the charge. Counsel for Davis on the plea had said that it would be "artificial" to submit that there was no other illicit activity and he did not propose to do so. It was, however, agreed by both sides that the evidence did not establish the amounts involved in sales to persons other than John.

31 Counsel for the respondent submitted that the judge was entitled to use this material in his fact finding role. The finding that Davis was "a busy salesman, actively seeking customers and sales" was balanced by the finding that there was no evidence that Davis had significant personal assets or a lavish lifestyle. He further submitted that if Davis wanted to put matters in mitigation of penalty, such as that the only benefit he derived from his trafficking was the cheap supply of drugs for his own use, then it was incumbent upon him to satisfy the learned judge as to these matters by evidence, rather than by an assertion from the Bar table based on "instructions". This was not done.

32 I agree with counsel's submission that his Honour's finding that on the information available to him he was unable to form a judgment about Davis' motive for committing the offence or the benefit obtained was neutral and one that, in the circumstances, favoured the appellant. In my opinion, no error has been shown in his Honour's conclusion in this respect.

Davis - Ground 3 - Parity

33 Counsel for Davis submitted that the one year difference between both the head sentence and non-parole period imposed on Davis and that on Tezer was such that there was a justifiable sense of grievance on the part of Davis, or that there was the appearance in the mind of an objective observer that justice had not been done. He pointed out that the amount of sales was similar - $89,000 for Davis and $64,000 for Tezer. He also referred to the judge's finding that Tezer was involved at a higher level of the criminal enterprise than Davis and that their criminal culpability was similar. In these circumstances, it was submitted that the sentence imposed on Davis (both head sentence and non-parole period) should have been equal to, if not shorter than, that imposed on Tezer.

34 On behalf of the respondent, counsel submitted that there were a number of valid reasons for the disparity between the sentences. They were as follows:

(a) While Davis operated at a lower level in the overall structure of the criminal enterprise than Tezer, he was nonetheless a very active drug dealer.

(b) Davis was involved in drug trafficking on a daily basis during the period covered by the presentment whereas Tezer was sentenced for two transactions in both of which Davis was also involved.

(c) The period covered by Davis' presentment was greater than that for Tezer.

(d) Davis was implicated in seven transactions with covert operative John. These involved a larger total amount of drugs and a larger sum of money than Tezer's two transactions. Davis introduced John to Laurie for the purposes of supplying drugs and played a continuing role as an intermediary between them, until he was cut-out of the loop. When Laurie was arrested, Davis sought to re-establish his involvement with John by introducing him to another dealer.

(e) Davis derived an identified monetary benefit from his involvement with Laurie. Tezer did not.

(f) Davis' prospects for rehabilitation were not as great as Tezer's.

(g) Davis had a more extensive and more relevant criminal history than Tezer.

35 I agree with the submission that in the circumstances the disparity between the sentences imposed on Davis and Tezer was justified. Therefore, this ground also fails.

Tezer - Ground 3(d) - Davis - Grounds 1 and 4(a) - Delay

36 As has been stated previously, both Tezer and Davis were charged and remanded in custody in April 2003. They were released on bail in July 2003. The committal took place in March 2005. They were arraigned and pleaded guilty in October 2005 and they were sentenced in May 2006. Thus, there was a delay of just over three years between charging and sentence.

37 In his reasons for sentence in respect of Tezer, the learned judge did not refer to the issue of delay, which had been but briefly mentioned by Tezer's counsel at the plea. It was then said by counsel to be a matter that should be taken into consideration but was not developed further, possibly because Davis' counsel had already argued the matter fully.

38 In his reasons for sentence in respect of Davis, the learned judge said that he accepted that there was "hardship" associated with a delay of that length. He stated, however, that he did not consider "the delay a matter appropriate to take into account" because Davis had been "involved with an extensive criminal structure which has taken both time to investigate and to sort out the consequences of the investigation".

39 In the case of Tezer, delay was raised as one particular of the broader complaint that the sentence was manifestly excessive. In the case of Davis, delay was argued both as a separate ground in its own right and as a particular of his manifest excess ground.

40 Counsel submitted that his Honour should have taken into account the undue delay in prosecuting what was said to be the straightforward case against Davis. Counsel referred to the following statement by Tadgell JA in R v Miceli:[6]

"There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. ... Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence to be taken into account when rehabilitation is a real prospect, and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of delay with a view to reorganising his life."

41 Counsel for the respondent submitted that it was open to the learned sentencing judge to take the view that, given the complexity of the overall investigation, a delay of three years was not such that in all the circumstances a sentencing discount was required. He pointed to the 159 witnesses named on the presentment, the 6,000 or so pages of depositions and the 146 page summary of evidence. He submitted that, like most drug cases, unravelling the complexities of this case took time and it was not helped by the no comment records of interview by both Tezer and Davis. He further submitted that it was not for the judge to consider the merits of the way in which the investigation was handled.

42 The exercise by an offender of his rights would not of itself deny or diminish the weight which a sentencing judge might attach to the factor of delay. Normally, therefore, such conduct would not qualify as the "obstruction or lack of co-operation" mentioned in R v Tiburcy.[7] Further, as Maxwell P said in R v Merrett, Piggott and Ferrari:[8]

"On a proper analysis ... the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. ... The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes "a powerful mitigatory factor". In particular, it focuses attention on issues of rehabilitation and fairness."

43 As the learned sentencing judge noted, Davis had spent 83 days in custody and upon his release in 2003 he had left the tow truck industry and undertaken, instead, regular casual work for catering companies. He continued to live with his mother. His Honour observed that "hopefully, these are indications of your rehabilitation." His Honour noted that in his frank interview with the psychologist, Mr Joblin, Davis had admitted that he had reduced, but not entirely ceased, his use of amphetamine. Thus, counsel for the respondent submitted that in the three year period Davis had failed to achieve the most important thing he could have done by way of rehabilitation, namely to avoid drugs. Nonetheless, in setting the non-parole period his Honour concluded that Davis had favourable prospects of rehabilitation.

44 Tezer had spent a total of 87 days in custody, which counsel described as, and the judge accepted, a "huge shock". His Honour also noted that since his release on bail Tezer had had no contact with Laurie. His Honour added: "There are other signs of an intention to rehabilitate yourself. You have completed cooking certificates, and you have expressed the desire to have the opportunity to start life again."

45 Chernov JA held in R v Cockerell[9] that inordinate delay which could not be attributed to the offender should be regarded as a powerful mitigating factor, on a number of levels. In the first place it is relevant where in the interim the offender had taken significant steps towards his rehabilitation. Secondly, as a matter of fairness, the sentencing judge ought have regard to the fact that the offender has had the prospect of imprisonment hanging over his head throughout the period of delay. As Maxwell P held in R v Tiburcy,[10] unless the delay was solely or partly the fault of the accused, amounting to obstruction or lack of co-operation, then significant delay remains a relevant sentencing factor, even if the prosecuting authorities could not be criticised for it, either, having regard to the nature of the investigation they were bound to conduct.

46 Eames JA held in R v Rowley[11] that it would amount to sentencing error to accord less weight or no weight at all to significant delay by virtue of the fact that the delay was not the fault of the prosecuting authorities. The learned sentencing judge, with respect, appears to have fallen into that error but his Honour can not be criticised for that because Tiburcy, Merrett and Rowley were all decided after he had imposed the sentences in the present cases.

47 Given his Honour's findings, I consider that Davis and Tezer were entitled to be given the benefit of both of the factors relevant to delay that were addressed in Cockerell. His Honour found that both of them had made use of the delay to advance their prospects of rehabilitation and both must also have lived with the anxiety of their delayed imprisonment.

48 I conclude, therefore, that both appellants have made good their complaint raised by their grounds of appeal, that his Honour erred in his treatment of the factor of delay. That re-opens the sentencing discretion.

Tezer - Ground 3 - Davis - Ground 4 - Manifest excess

49 In my opinion, both the head sentences and the non-parole periods imposed on Tezer and Davis by the learned sentencing judge were within the appropriate range for this type of offending. The offence to which they pleaded guilty was very serious and it carried a maximum penalty of 25 years' imprisonment. Nettle JA in Tabone summarised the proper approach to be taken to such an offence:

"The course of authority is plain. In cases of commercial cultivating and trafficking in prohibited substances, an immediate custodial sentence will be imposed unless exceptional circumstances can be shown.

... The detrimental effects of drug trafficking upon society are so grave that, absent exceptional circumstances, it is necessary to impose an immediate term of imprisonment."[12]

50 Apart from delay, the matters specifically relied on by Tezer as matters to which the learned sentencing judge did not give any or sufficient weight were expressly referred to by his Honour and given appropriate weight in my opinion. First, the early plea of guilty was said to have resulted in "a significant reduction" in the sentence that otherwise would have been imposed. It was also taken into account in fixing the non-parole period.

51 Secondly, Tezer's lack of a relevant prior criminal history was taken into account by the judge both in fixing an appropriate sentence and the non-parole period. Nevertheless, as Charles JA observed in R v Berisha:[13]

"That lack of prior criminality is of less than usual significance in drug offence cases is well-established."

52 Thirdly, the fact that Tezer did not appear to have benefited financially from his involvement with the offence was referred to by his Honour, who then went on to note the lack of evidence of substantial assets or a lavish lifestyle. His Honour clearly understood the limited role played by Tezer and how it had come about that Tezer agreed to help Laurie.

53 Fourthly, Tezer's efforts at rehabilitation were referred to by the learned sentencing judge and his Honour took Tezer's "prospects of rehabilitation" into account in fixing the non-parole period. His Honour nevertheless took into account the need for specific and general deterrence.

54 Given that Tezer was involved at the wholesale level, albeit as an aider and abetter, in two relatively large transactions some months apart and that he was clearly aware of the extent of his friend's involvement in the drug trade and yet he knowingly and willingly provided assistance to him, the argument that both the head sentence and the non-parole period were manifestly excessive must fail. As counsel for the respondent submitted, a sentence of imprisonment of 10% of the maximum penalty was, in the circumstances, lenient rather than excessive.

55 All of the matters specifically relied on by Davis as matters to which the judge did not give any or sufficient weight were expressly referred to by his Honour although not at all of them were taken into account by his Honour. I have already dealt with the specific ground of appeal based on the purpose of, and benefit from, trafficking. It does not lend any support to the argument that the sentence imposed on Davis was manifestly excessive. There was also the question of delay referred to above.

56 Further, there is no reason to conclude that the learned sentencing judge did not give appropriate weight to the remaining matters. His Honour treated Davis' prospects of rehabilitation favourably despite the fact that he continued to use amphetamine albeit on a reduced scale. The judge also recognised that Davis' plea of guilty demonstrated acceptance by him of responsibility for his criminal conduct and merited "a significant reduction in the penalty that would otherwise be imposed". Moreover, both of these matters and Davis' "limited criminal history of offences involving drugs" were expressly mentioned by his Honour when fixing the non-parole period.

57 Given the number of illegal transactions in which Davis was intentionally involved as a busy salesman actively seeking customers and sales over the seven month period, the total amount of drugs trafficked by him and the amount of money involved, the argument that both the head sentence and the non-parole period were manifestly excessive must fail. In the circumstances, a sentence of imprisonment of 14% of the maximum penalty of 25 years was, as counsel submitted, moderate.

58 I have, however, concluded that the sentencing discretion ought be re-opened because I would uphold the complaints made under other grounds by both appellants as to the factor of delay. The fact that sentences imposed are deemed not to be manifestly excessive does not mean that they would be the sentences imposed by the judges sitting on appeal. The appellate task, in response to a ground complaining that sentences are manifestly excessive, is decidedly not to substitute its own discretion for that of the judge below. Rather, the ground will be rejected if the sentences imposed by the judge were within the range open to him or her in the exercise of his or her discretion.

Re-sentencing

59 I must now consider whether in the exercise of my own discretion, upon re-sentencing, I would impose any lesser sentence in either case.

60 Counsel on behalf of Tezer highlighted the early plea of guilty, the absence of prior convictions, the fact that it was not proved that Tezer had gained any financial reward for his offence, the delay and his prospects of rehabilitation. On behalf of Davis, counsel highlighted his client's limited and relatively old prior convictions, his remorse, delay, and his prospects of rehabilitation. Davis, who was aged 37 when arrested, had been a user of amphetamine and had been engaged in the offending partly in order to obtain drugs for his own use.

61 As the summary of evidence discloses, the appellants were part of a major drug ring that was the subject of extensive investigation by police. They each pleaded guilty to trafficking in a commercial quantity of a dangerous drug of dependence, an offence which carries a maximum sentence of 25 years' imprisonment. In my opinion, the learned sentencing judge appropriately evaluated the roles of each offender in the enterprise and the nature of their offending. I have already approved his Honour's analysis.

62 The sentencing discretion has been re-opened in my opinion only because of the factor of delay, but that factor is not a matter of particular significance, in my view, when evaluating the offending in these cases and the mitigating factors which they could each call in aid. Although I would make allowance for delay in both cases I would conclude, in the exercise of my own discretion, that the sentences imposed in both cases were appropriate.

63 Accordingly, whilst I would allow the appeals, in each case I would re-impose the same sentence imposed below and declare it to commence on the same date 11 May 2006, varying the orders only by making a declaration of pre-sentence detention which has regard to time served up to the date of sentencing in this court. I would confirm the confiscation, pecuniary penalty and forensic sample orders made below.

[1] R v Duong [1998] 4 VR 68, 77-78 (Kenny JA); R v Le and Nguyen [2005] VSCA 284, [17] (Charles JA).

[2] See Director of Public Prosecutions v McCoid [1988] VicRp 89; [1988] VR 982.

[3] [2006] VSCA 238, [10], [12]-[14].

[4] [2007] VSCA 18.

[5] R v Knights (1993) 70 A Crim R 105, 110 (Crockett J); R v Duy Doc Nguyen [2006] VSCA 184, [36] (Redlich JA).

[6] [1997] VSC 22; [1998] 4 VR 588, 591.

[7] [2006] VSCA 244, [25] (Maxwell P).

[8] [2007] VSCA 1; (2007) 14 VR 392, [34]-[35].

[9] [2001] VSCA 239; (2001) 126 A Crim R 444, 447 [10] (Winneke P and Buchanan JA agreeing).

[10] [2006] VSCA 244, [14]-[16], [25] (Warren CJ and Buchanan JA agreeing).

[11] [2007] VSCA 94, [38] (Vincent and Nettle JJA agreeing).

[12] [2006] VSCA 238, [21]-22].

[13] [1999] VSCA 112, [27].