R v Wright; R v Gabriel [2008] VSCA 19

**1 These are appeals against sentence by Garry Leigh Wright and Antonios Gabriel. They, together with a co-offender Wairau, were each sentenced to terms of imprisonment in the County Court at Ballarat on 18 April 2007, having pleaded guilty to several counts of drug trafficking on a single presentment. Wright and Gabriel, who were aged 25 and 27 years respectively at the time of sentence, appeal pursuant to leave granted by a judge of this Court under s 582 of the Crimes Act 1958.

2 Wairau pleaded guilty to counts 1, 2 and 3 on the presentment, namely trafficking in a commercial quantity of ecstasy, trafficking amphetamine, and trafficking cocaine. He was sentenced to five years' imprisonment on count 1, three and a half years on count 2, and six months on count 3, with orders for cumulation resulting in a total effective sentence of six years' imprisonment with a non-parole period of four years. Gabriel pleaded guilty to counts 4 and 5 on the presentment, namely trafficking ecstasy and trafficking amphetamine, and was sentenced to three years' imprisonment on each count, with orders for cumulation resulting in a total effective sentence of four years' imprisonment with a non-parole period of three years. Wright pleaded guilty to counts 6, 7 and 8 on the presentment, namely trafficking ecstasy, trafficking amphetamine, and trafficking cannabis L, and was sentenced to three years' imprisonment on each of the first two counts and six months' imprisonment on the third count, with orders for cumulation resulting in a total effective sentence of four years' imprisonment with a non-parole period of three years.

3 The maximum penalty for trafficking in a drug of dependence in a commercial quantity is 25 years' imprisonment.[1] The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment.[2]

4 On 7 February 2008, after hearing oral argument on both appeals, the Court made orders determining Gabriel's appeal and reserved its decision on Wright's appeal. In the case of Gabriel the appeal was allowed and the following orders were made on the basis that reasons would be provided later. The orders were:

(b) The sentence passed in the County Court on 18 April 2007 is quashed.

(c) In lieu thereof the appellant is sentenced to a period of imprisonment of three years on count 4 and a period of imprisonment of three years on count 5.

(d) One year of the sentence on count 5 is to be served cumulatively on the sentence imposed on count 4. The total effective sentence is four years' imprisonment.

(e) The Court fixes a non-parole period of two years and six months imprisonment.

(f) The Court declares that a period of 319 days had already been served pursuant to the sentence and orders that the fact that that declaration had been made and its details be noted in the records of the Court.

5 In the case of Wright the Court reserved its decision for the purpose of enabling him to submit material as to his rehabilitation and behaviour since the time of his offending; any such material to be provided to the Court by 5.00pm on 13 February 2008.

6 Wright's solicitor duly filed an affidavit on 13 February 2008 deposing to Wright's rehabilitation and behaviour since the time of his offending. Having had the benefit of considering that further material, we are of the view that Wright's appeal should also be allowed and that orders should be made in the same terms as those made in respect of Gabriel.

7 The Court now provides its reasons for decision on each appeal.**

(a) declining to take into account a pecuniary penalty order made against the appellant in the amount of $20,520;

(b) in so declining, taking into account an irrelevant consideration i.e. that '[t]o do so would be ... yet another instance of inequity ...' between the appellant and the co-offender Wairau;

(c) failing to give any, or any adequate, reasons for declining to take into account the making of the pecuniary penalty order.

(2) The judge erred by sentencing the appellant by reference to admissions, inadmissible in the case against him, of the co-offender Wairau.

(3) The judge erred by failing sufficiently to have regard to the appellant's:

9 We note that although Gabriel's notice of application for leave to appeal against sentence stated that he sought leave to appeal on the ground that the sentence was manifestly excessive, that ground did not appear in his full statement of grounds.

(a) in the manner in which he approached the question of whether the pecuniary penalty order against the appellant should be given any weight in mitigation; and/or

(b) in declining to give any weight in mitigation to the pecuniary penalty order.

(2) The judge erred in sentencing the appellant on the basis that the version of events given by the co-offender Wairau was correct.

(3) The judge erred in failing to take into consideration the entering of an early plea when weighed up against not giving a record of interview.

(4) The judge erred in his approach to the question of parity between the appellant and the co-offenders Gabriel and Wairau.

(5) The judge erred in not ordering a pre-sentence psychiatric or psychological assessment of the appellant.

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

11 The Crown concedes that the sentencing judge's discretion miscarried by reason of his failure to properly exercise the discretion conferred by s 5(2A)(c) of the Sentencing Act 1991, which provides that in sentencing an offender the Court may have regard to a pecuniary penalty order to the extent to which it relates to benefits in excess of profits derived from the commission of the offence. That is, the Crown concedes that ground 1 in each instance is made out. The Crown submits, however, that in all the circumstances the individual sentences imposed, the orders for cumulation, and the minimum non-parole periods fixed are appropriate and that no different sentence should be imposed by this Court.**

**12 The Crown Summary is extensive and it is not necessary to set it out in detail. It is sufficient to note that from about July 2005 the police engaged in physical and electronic surveillance of people suspected of involvement in the illicit drug trade. Undercover officers purchased ecstasy and amphetamine from Wairau in Ballarat and Melbourne. Police monitored Wairau's mobile and fixed line telephones, in the course of which they heard conversations between Wairau and Gabriel and Wright, in which Wairau arranged to purchase ecstasy and amphetamine from both Wright and Gabriel. Undercover officers arranged to purchase drugs from Wairau at several locations and, upon attending at the locations, observed Wairau collect drugs from Gabriel which he then sold to the undercover officers.

13 Following his arrest, Wairau made full admissions as to trafficking ecstasy and amphetamines. He said that he had done so for the past four years, but that in the past 18 months his trafficking had increased exponentially as he was unemployed. He stated that over the past 18 months he had trafficked on average 80 to 100 ecstasy tablets and 14 grams of amphetamine per week. He said that he also set up larger deals of ecstasy and amphetamine on occasions acting as middle man.

14 The Crown Summary states that following their arrests, Gabriel and Wright both made a no-comment record of interview.[3] Both subsequently pleaded guilty at the committal hearing. The effect of their pleas of guilty was that the presentment stated that Gabriel had trafficked ecstasy and amphetamine over a two month period from August to October 2005, while Wright had trafficked ecstasy and amphetamine over a four month period from July to October 2005, and cannabis over a two month period from August to October 2005. As to Wairau, the presentment stated that he had trafficked ecstasy and amphetamine over an eighteen month period, from April 2004 to October 2005,[4] reflecting his admissions to the police.**

**15 Following arraignment, the three offenders pleaded guilty and Wairau and Wright admitted prior convictions. Wright admitted 41 prior convictions from six previous court appearances, while Gabriel had no prior convictions. The three offenders consented to the making of pecuniary penalty orders against them in the amounts of $104,520 (Wairau), $20,520 (Gabriel), and $17,460 (Wright). Following pleas in mitigation on behalf of each offender, the judge reserved his decision on sentence.

16 On 18 April the judge sentenced the offenders to the terms of imprisonment set out at [2] above.

17 In his sentencing remarks concerning Wairau the judge stated that the counts relating to ecstasy and amphetamine were constituted by numerous sales over the eighteen month period, which sales 'were made pursuant to an arrangement or understanding between yourself and the other two accused. They supplied the drugs to you and you sold them to a number of others for their own use or for further distribution as they chose'. The judge further stated:[5]**

It is not open on the evidence properly admissible against the other two co-accused to find in the case of either of them that they supplied drugs to you other than during the periods in respect of which each has pleaded guilty. What has brought about this state of affairs is that upon arrest you made full and frank admissions of the matters alleged against you. The consequence of that is, that your own admissions in effect provide the evidence against you to justify the longer period charged and the larger number of sales and the larger quantities of the drugs.

Without your admissions the case against you may well have been confined as are the cases against your two co-accused who did not make the relevant admissions. You deserve considerable credit for your admissions in these circumstances. That should be reflected in your sentence.

The judge explained that Wairau, by his plea, had admitted to trafficking (on a conservative estimate) 939 grams of ecstasy[6] (count 1) and 1092 grams of amphetamine (count 2), the total value of which drugs exceeded $400,000. He stated:

Your position or rank in the hierarchy responsible for the distribution of the drugs in this case is one rung lower than that of your two co-offenders. They were suppliers to you and closer to the source of the drugs. You were effectively on the bottom, but one, rung and in that sense were subordinate to the other two. Your participation, your role in the distribution of the drugs, was nonetheless necessary to the successful distribution as of course was theirs. These findings apply also in the case of each of the co-accused.

**18 The judge emphasised Wairau's cooperation with the police and his 'full and frank admissions', which he considered indicative, along with other matters, of an appreciation of the significance of what Wairau was doing and its harm and of remorse on his part. That was strengthened by the plea of guilty, and together with other matters personal to Wairau, the judge considered that he was unlikely to re-offend, had very good prospects of rehabilitation, and that the need for special deterrence did not loom large in his case.

19 As to Gabriel, the judge stated that:[7]**

Your trafficking was to Mr Wairau for the purpose of him further distributing the drug to ultimate users. He depended on you and Mr Wright for his supplies. You and Mr Wright clearly had access to a supplier of your own, higher up the chain, and access therefore to large quantities of these drugs. As you have been charged with and pleaded guilty to only the relatively limited trafficking referred to in counts 4 and 5 any sentence must be confined to that trafficking. In particular, I cannot, as against you, make a finding that you supplied to Mr Wairau any drugs other than those to which you have pleaded guilty.

20 The judge then explained that the Crown did not have the benefit of admissions from Gabriel, which was not a criticism of Gabriel as it was his right not to make admissions and he was not to be punished for that, however:[8]

It is much easier to conclude that a person does have insight into or appreciation of the significance of his offending and its consequent harm, and is generally remorseful and unlikely to offend again if he behaves on arrest as Mr Wairau did than if he does not. Without such behaviour a plea of guilty, even though entered at committal, starts to look more like a recognition of the strength of the case against a person than the expression of genuine remorse and a determination not to reoffend.

21 As to the level of Gabriel's offending, the judge stated:

In your case it seems to be accepted that the level of your trafficking is 80 to 100 extra ecstasy tablets per week and 14 grams of amphetamine per week. The figures of course derive from Mr Wairau's admissions, but, as I say, accepted by you. In the circumstances all that can be attributed by way of monetary value to your trafficking is a sum measured in tens of thousands of dollars.

**22 As to the relationship between Gabriel and Wright, the judge concluded that they jointly supplied Wairau, each of them doing whatever was necessary in the particular circumstances to ensure the supply and to help one another out, and that 'your respective criminality was equal one with the other in that regard'.[9]

23 As to Gabriel's personal circumstances, the judge said that he had a good work history until suffering a motor accident, after which he took some years off, but since which he had again been in ongoing employment and had been promoted. The judge mentioned his lack of prior convictions, and added:**

You pleaded guilty at committal. While I do not think in the circumstances that it is indicative of remorse or reformation you nonetheless are entitled to a discount for saving the time and expense of a trial and the trauma to be expected of witnesses in a trial.

You started using drugs in clubs and moved subsequently to trafficking. You have not used since your arrest and have taken steps to cure your habit. You have moved out of the drug scene and are applying yourself to your work and to your family. You and your partner of three years have a five-month-old child. You have her support and that of your parents. Your family is present in court. I cannot say that you are without prospects of ultimate rehabilitation. I think that those prospects are fair.

24 As to Wright, the judge stated that the ecstasy and amphetamine offences to which he had pleaded (counts 6 and 7) occurred over a four-month period from July 2005 to October 2005, while the cannabis offence (count 8) was trafficking over a two-month period. The judge stated that:

Counts 6 and 7 are constituted by trafficking to Mr Wairau as was the case with Mr Gabriel. What I said at this point when dealing with Mr Gabriel applies equally to you, although the period differs. In your case, it seems to be accepted that the level of your trafficking was the same as that of Mr Gabriel. What I said about that when dealing with him applies to you also. Also applicable in your case is what I said about your relationship with Mr Gabriel.

As with Mr Gabriel, and this applies to him also, you were both more senior to Wairau in the organisation of the drug supply and distribution and he was dependent on both of you for his supply in drugs.

25 As to Wright's personal circumstances, the judge said that:

You have a troubled and unfortunate background and upbringing resulting in your leaving home at the age of 15 and living on the street and joining what is called a drug culture. This would have been compounded by your attention deficit disorder. You have trouble adapting socially and keeping employment. You became addicted to ecstasy and amphetamines probably because of your involvement in the club scene, as it is called, and eventually commenced trafficking.

I do not accept that the use of amphetamines and subsequent trafficking in it was some sort of self-medication when you found that your prescribed medication for ADD was amphetamine-based. All I am prepared to acknowledge is that if you are a user then it is easier to slip into dealing. You have since your arrest, and with some success, endeavoured to become and remain drug free. You do seem to be attempting to turn your life around. You are in a stable relationship. Your partner and your father are in court to support you. You have prior convictions but they were from an early age, none are drug-related and the last was in 2001. You pleaded at committal. What I said in respect of Mr Gabriel applies to you also. Again I cannot say that you are without prospects of ultimate rehabilitation, but I am not prepared to put it higher than that.

**26 The judge noted that one and a half years had elapsed since the offending of each of the three offenders ceased. He stated that the passage of time is a mitigating factor.

There is a case for parity of sentencing between you, Mr Gabriel, and you, Mr Wright, but not between the two of you on the one hand and Mr Wairau on the other. Nonetheless, I bear in mind the sentences I propose for the others when I come to sentence each one of you.

28 After noting that each offender had consented to a pecuniary penalty order, the judge said:

Because of Mr Wairau's frankness the Crown can proceed as it has in respect of the pecuniary penalty order against him. I may not take that into account in sentencing him. I may, however, take into account in respect of each of you, Mr Wright and Mr Gabriel, the making of the relevant pecuniary penalty order against you. However, I decline to do so. To do so would be, it seems to me yet another instance of inequity between the three of you caused to Mr Wairau by his full and frank admissions and so on.

29 The judge then sentenced the offenders as referred to at [2] above.

31 As ground 1 is conceded by the Crown, there is no need to deal further with the submissions advanced as to this ground.

32 As to ground 2, it was stated in counsel's written submission that the evidence admissible against Gabriel disclosed his having trafficked over a two month period, and that the plea and sentence purportedly proceeded on that basis, yet on reading all three pleas, it was plain that the judge was much concerned that the full and frank admissions of Wairau had placed him in a situation where he was worse off than those the judge found had supplied him for a period of 18 months. It was submitted that the judge found as fact that Gabriel and Wright had supplied Wairau over the period revealed in the latter's admissions, and that despite the apparent care with which he crafted his reasons, the acceptance of Wairau's admissions and the perceived 'inequity' flowing from them had 'clearly pervaded the judge's synthesis'. By relying on Wairau's account as the true basis for assessing the criminality of all three offenders, the judge fell into the error of sentencing Gabriel for offending beyond that disclosed by his plea. Counsel did not address ground 2 in oral submissions.

33 Rather, counsel focused his oral submissions on ground 3, in effect arguing that the sentencing judge had undervalued Gabriel's prospects of rehabilitation and, on a proper consideration of all relevant matters, including material not before the judge but which counsel put before this Court on the appeal, the Court should impose on Gabriel a less severe sentence than that passed by the judge.

34 Counsel noted that Gabriel was only 27 years old when sentenced. Counsel referred to the following matters, all of which were before the sentencing judge, as set out in the written submission:

• He pleaded guilty at what the prosecution characterised as the first available opportunity;

• He disclosed no prior convictions and had nothing pending;

• He had sought treatment for, and conquered his own drug problem;

• He disclosed a good work history that preceded and post-dated a traffic accident in which he was seriously injured;

• He was at the time of the plea working full time and had recently gained a promotion;

• He was in a stable relationship and had recently become a father; and

• He had the support of a close and devoted family.

35 In addition to the above matters, counsel relied on the following matters as going to the issue of Gabriel's rehabilitation:

• Urine analyses of Gabriel collected at Loddon Prison on 8 June, 3 July, 28 August, 16 September, 23 October and 7 November 2007, all of which returned negative results.

• A Loddon Industry Work Report for Metal Fabrication dated 11 December 2007. The report indicates that Gabriel worked as a general hand, demonstrating a 'good' work attitude, safety awareness, and motivation, and 'very good' behaviour, attendance and a courteous attitude. He worked under minimal supervision and his overall assessment was 'good'.

• A statement of results for Certificate 1 in Hospitality (Kitchen Operations), indicating that in 2007 Gabriel passed the module 'Follow Workplace Hygiene Procedures' at Bendigo Regional Institute of TAFE.

36 Counsel submitted that, in all the circumstances, the Court should conclude that Gabriel has good prospects of rehabilitation.

37 Counsel then referred to a letter from Gabriel's family doctor, Dr Jay Sadhai, dated 1 February 2008. To paraphrase, the letter states that Gabriel sustained severe trauma to both feet and ankles, namely fractures and dislocations, in a car accident in 1999. The right foot was more damaged than the left. He was treated at the Alfred Hospital and had both fracture dislocations reduced with screws. Dr Sadhai has seen Gabriel regularly in relation to his condition, and he has had regular physiotherapy and analgesics for pain and supportive wear for his legs. He has supportive shoes for both feet. On 1 February 2008 Dr Sadhai examined Gabriel at Castlemaine Prison as he was complaining of pain and frequent swelling in the right foot and ankle, and pain every day in both feet. The examination showed right foot swelling and restricted movement and a tender Achilles tendon, while the left foot was stable. Dr Sadhai recommended that Gabriel have a bone scan of the right ankle, a CT scan of the Achilles tendon, that Gabriel see an orthopaedic surgeon, and that he 'should immediately have supporting shoes for both feet, which was recommended by the Prison Doctor, but refused by the Governor'. As to the Prison Doctor and the Governor's refusal, counsel provided the Court with a Special Request Order Form dated 8 October 2007, in which Gabriel requested that funds totalling $170 be approved to be sent in to cover the cost of a pair of Asics Gel Cardio walking shoes. A Registered Nurse - and not the Prison Doctor - had written in the Comments section of the form that 'Antonios needs cushioning and arch supports for protection necessary following foot surgery on both feet'. The request was not approved, the Operations Manager appearing to have signed the form on 10 October 2007.

38 Counsel submitted that because of Gabriel's foot injuries, and the fact that he had been denied proper footwear which might alleviate his pain, imprisonment is more onerous on Gabriel than it otherwise might be, and the sentence imposed should properly reflect that fact.

40 As to grounds 2 and 4, counsel's written submission stated that it was apparent from the transcript and sentencing remarks that the judge was significantly impressed by the full and frank admissions of Wairau, and while the judge took these admissions into account in mitigation with respect to Wairau, the allegation that Wairau had been supplied by Gabriel and Wright throughout the 18 month period was not admitted by Wright and Gabriel and was not evidence against them. Yet the judge in fact treated Wairau's allegations as established, and effectively ignored the fact that Wright was to be sentenced for trafficking over a much more limited period than Wairau. The judge effectively sentenced Wright for conduct over the whole period depicted by Wairau. Further, and more specifically, the finding that Wright was superior to or more senior to Wairau in the supply chain was not justified. The only evidence was that Wright and Gabriel supplied Wairau, but there was no evidence that Wright gave Wairau directions, controlled his share of the proceeds or decided to whom he was to sell or market. The evidence established no more than that Wright and Wairau were links in the same supply chain. Thus, submitted counsel, there was equality in their culpability.

41 And while the judge found that parity was not relevant as between Wright and Wairau, the sentencing remarks reflected an intent to redress what the judge saw as an inequity arising from Wairau having confessed fully and Wright having remained silent. It was submitted that the judge erred in so doing.

42 As to grounds 3 and 6, the written submission contended that while Wright pleaded guilty at committal, being the earliest opportunity to do so, the judge failed to give proper weight to the early plea, as well as Wright's conduct in the 18 month period between arrest and the plea.[10] The failure arose from the judge taking an adverse view of Wright's response after arrest when compared with Wairau, and also the judge adopting in respect of Wright the sentencing remarks he made about Gabriel, namely that the early plea of guilty was not indicative of remorse, and that he was 'not without prospects of ultimate rehabilitation'. The submission emphasised that the finding of lack of remorse was based on the judge's erroneous view that Wright had made a no-comment record of interview, when Wright in fact confessed to police that he had trafficked drugs over a three to four month period. As to the circumstances of the offender, it was submitted that his drug rehabilitation and lack of relevant prior convictions (at least since 2001) meant that Wright was unlikely to re-offend if he remained drug free. It was submitted, seemingly under cover of ground 6, that the head sentence and non-parole periods were outside the appropriate range, given that Wright had, contrary to what the judge found, shown remorse by his early plea, and made admissions to the police.

43 Further, pursuant to our indication that we would consider any further material provided as to Wright's rehabilitation and behaviour since the time of his offending, on 13 February 2008 Wright's solicitor filed an affidavit deposing to the following matters:

• Wright was initially imprisoned at Port Phillip Prison (from 18 April to early June 2007) where he worked folding pizza boxes. He also completed two drug education programs run by Moreland Hall. The first was a 12 hour course called 'Youth Drug Education' completed on 23 May. The second was a 12 hour course called 'Relapse Prevention' completed on 30 May.

• From early June to November 2007 Wright was imprisoned at Loddon Prison where he worked in the Powder Coating Section for three months, following which he was made billet for three months which meant that he would look after the unit where he and other inmates resided. At this time, a prison employee trained Wright in martial arts.

• In December 2007 Wright was transferred to Fulham Prison, a medium/minimum security prison, where he is currently imprisoned. The solicitor deposed that Wright has not yet been allocated a work position at Fulham.

• Urine analyses of Wright, collected at Port Phillip Prison on 8 May and 28 May 2007, and Loddon Prison on 8 June, 1 August, 5 October, 29 October and 23 November 2007, all returned negative results.

• Wright was granted bail on 21 October 2005 subject to conditions under the Credit/Bail Support Programme, and successfully completed the programme. The Final Progress Report dated 30 March 2006 observed that despite missing his first appointment, Wright attended all but one of his eight fortnightly appointments, and 'continually demonstrated a sincere commitment towards making positive lifestyle changes'. Wright had reported abstinence from drugs and 'there has been no evidence to suggest otherwise as Mr Wright has presented in very good health and he discussed issues that could only suggest that he was determined to remain substance free'. We interpolate that this report was in fact provided to the sentencing judge, however the observations expressed in the report were necessarily made at an early stage and the judge did not have the benefit of the additional material we have seen which tends to bear out the optimism contained in the report.

44 As to ground 5, which was the only ground counsel elaborated on in oral submissions, it was submitted that while the judge appeared to accept the material advanced on the plea as to Wright's Attention Deficit Hyperactiviy Disorder ('ADHD'), he gave little weight to it. It was acknowledged that while Wright's counsel on the plea initially requested that the judge order a pre-sentence report, on the second day of the plea he withdrew the request. Nevertheless, counsel submitted to this Court that there was a reasonable possibility that Wright's descent into drug use and trafficking had been a consequence of medication taken for his ADHD; I note that if that had been established before the judge, it would have been a materially relevant mitigating factor. Notwithstanding the failure of counsel on the plea to put any psychological or psychiatric material before the judge, it was nevertheless submitted to this Court that the judge ought to have ordered a pre-sentence report. Counsel sought to support his submission by reference to a letter from Dr Stuart Anderson dated 19 March 2003 stating that Wright 'has been on a disability pension because of ADD'.**

**45 As to the first ground, as we have noted the Crown concedes that the sentencing judge's discretion miscarried by reason of his failure to properly exercise the discretion conferred by s 5(2A)(c) of the Sentencing Act 1991. In our view, the Crown's concession is correct. As the pecuniary penalty orders made against Wright and Gabriel related to 'benefits' rather than 'profits', s 5(2A)(c) applied so that regard may be had to the pecuniary penalty orders made against them. In R v Diep; R v Vosinthavong[11] Ormiston JA (with whom Batt and Vincent JJA agreed) stated that the authorities treat the imposition of a pecuniary penalty order as part of the sentence itself. In R v Tilev[12] Batt JA (with whom Tadgell JA and Vincent AJA agreed) referred to the 'retributive, deterrent and preventive characteristics' of a forfeiture order.[13] The pecuniary penalty orders of $20,520 (against Gabriel), and $17,460 (against Wright) are effectively part of the punishment to which the appellants are subject. In all the circumstances, it is appropriate to take the making of those orders into account in mitigation of sentence, and we do so in considering whether a different sentence should have been passed in the case of each appellant.

46 The sentencing discretion having miscarried, it is not strictly necessary to decide whether any of the other grounds of appeal are made out, although it is necessary to say something about the questions which they raise in considering whether a different sentence should have been passed, for unless the Court concludes that a different sentence should have been passed, it must dismiss each appeal.[14]

47 As to ground 2 of each appellant, it is clear from the sentencing remarks, read as a whole, that the judge was very mindful of the fact that he could only sentence Gabriel and Wright on the basis of the limited periods of trafficking to which they had pleaded guilty. He specifically stated, and repeated, that it was not open on the evidence properly admissible against Gabriel and Wright to find in the case of either of them that they supplied drugs to Wairau other than during the periods in respect of which each had pleaded guilty. We do not overlook that the judge referred[15] to Wairau selling drugs over an 18 month period pursuant to an arrangement whereby Gabriel and Wright supplied drugs to Wairau which he on-sold. But even if that statement can be properly understood as a finding that Gabriel and Wright supplied drugs for 18 months, such finding was only made for the purposes of sentencing Wairau. In short, the judge made it clear that he was sentencing Gabriel and Wright only on the limited bases to which they had pleaded. It is apparent that the judge placed considerable importance on Wairau's full and frank admissions, but it does not follow, as counsel for the appellants submitted, that the judge therefore sentenced Gabriel and Wright on the basis of the criminality disclosed in those admissions. Rather, and as he was entitled to do, by recognising Wairau's admissions the judge did no more than recognise that, without those admissions, Wairau's case may well have been confined to a shorter period than it actually was.

48 In all the circumstances, we reject the submission that the judge erred by sentencing the appellants for offending beyond that disclosed by their pleas. Accordingly ground 2 is not made out and does not, in itself, indicate that the sentences were other than appropriate.

49 As to Gabriel's ground 3, we consider that the judge was entitled to find that, in the circumstances of the case, Gabriel's plea at committal was not indicative of remorse. Further, and in light of matters as they then stood, it was open to the judge to put Gabriel's prospects of rehabilitation as no higher than that he was 'not without prospects of ultimate rehabilitation', and that those prospects were fair. However that was in April 2007 and on appeal we have the benefit of information as to Gabriel's conduct and rehabilitation since then. That information, accepted by the Crown, particularly the fact that he has stayed drug free and his endeavours otherwise, supports a reappraisal of Gabriel's prospects of rehabilitation. Of course, much depends on his ability to stay drug free, but the signs are favourable. Further, his chances of remaining drug free after release from prison may well be increased by a sentence which provides for a longer period of supervision under parole. These are relevant matters in deciding whether a different sentence should be passed.

50 As to Wright's ground 3, we consider that the judge gave proper weight to Wright's early plea of guilty. However, in dealing with Wright's prospects of rehabilitation, the judge simply adopted what he said in relation to Gabriel. By doing this, the judge proceeded on the erroneous basis that Wright had made a no-comment interview, when he had in fact admitted to trafficking drugs over a three to four month period. Further, we consider that the further material supports a more favourable view of Wright 's prospects of rehabilitation than the judge arrived at. As with Gabriel, much depends on Wright's ability to stay drug free, but the signs are favourable. Further, as with Gabriel, his chances of remaining drug free after release from prison may well be increased by a sentence which provides for a longer period of supervision under parole. These are relevant matters in deciding whether a different sentence should be passed.

51 As to Wright's ground 4, being the question of parity as between Wright and the other offenders, we note the following. In essence, the judge concluded that as Gabriel and Wright jointly supplied drugs, their level of trafficking was the same, their respective criminality was equal, and there should be parity of sentencing between them, but not as between them and Wairau. In our opinion, the judge was entitled to take the view that this was not a case for parity between the appellants on the one hand and Wairau on the other. And the sentences reflected that view. Wairau received a higher sentence than the appellants in light of the more serious offence to which he pleaded and the more extensive admissions he made. And while Wairau's sentence may perhaps be regarded as lenient, it must be recalled that he was entitled to a significant discount on account of his admissions, remorse and what the judge considered to be his excellent prospects of rehabilitation. As to the question of parity between the appellants, the judge was entitled to take the view that their level of trafficking was the same. We would reach the same conclusion. However, the judge appears to have overlooked the fact that Wright was to be sentenced on the basis that his trafficking covered a period of three to four months, whereas Gabriel's trafficking only covered two months.

52 As to the judge's observations about the relative position of the offenders in the drug distribution organisation, we note the following. The judge stated that Wairau was 'one rung lower ... and in that sense subordinate to' Wright and Gabriel, who 'clearly had access to a supplier of their own, higher up the chain'. Further, he said that Wright and Gabriel were both 'more senior to Wairau in the organisation of the drug supply and distribution'. As counsel submitted, the evidence was that Wright and Gabriel supplied Wairau, but there was no evidence that they gave Wairau directions, controlled his share of the proceeds or decided to whom he was to sell or market the drugs. In that sense, but in that sense alone, the finding that the appellants were superior or more senior to Wairau in the supply chain was not supported by the evidence. However, the fact is that Wright and Gabriel were the suppliers to Wairau and in that sense the judge's observations were understandable, and such as we would reach.

53 As to Wright's ground 5, the sentencing remarks indicate that the judge proceeded on the basis that he accepted that Wright suffered from ADHD and that he gave that matter appropriate weight in sentencing. Importantly, the matter of a pre-sentence report was not pressed before the judge, and in those circumstances it is readily understandable that the judge did not order a report. The judge did not err in that regard. Further, the letter from Dr Anderson, on which counsel relied, did not aid the submission. Dr Anderson's letter merely stated that he last saw Wright two years ago - that is in 2001 - and as Wright is over 21 and Dr Anderson had not been treating him in recent times, he did not feel that he could endorse an application for a disability pension. He was not sure that Wright had a disability justifying this. Dr Anderson suggested that adult ADD needed assessment by a psychiatrist, and to that end provided Wright with a referral.

54 We also note that although the further material provided on 13 February 2008 was meant to be limited to the issue of Wright's rehabilitation and behaviour since the time of his offending, the solicitor nevertheless deposed to the matter of Wright's ADHD, to that end exhibiting an additional letter from Dr Anderson dated 10 February 2008, and a letter from Dr Sadhai dated 8 February 2008. In our view, these letters do not advance Wright's position. Dr Anderson simply confirmed that Wright was diagnosed with ADHD in May 1995 and treated with the stimulant medication Dexamphetamine until approximately mid 1997 when he left school, then treatment resumed again in December 1998 for a short time, since which time Dr Anderson has not treated Wright. Dr Sadhai stated, assumedly after seeing Wright, that Wright 'has been on a disability pension because of ADD', and that he still has ADD and is on a disability pension.

55 Finally, it remains to deal with the question of manifest excess. This was Wright's ground 6. And although Gabriel did not expressly submit that his sentence was manifestly excessive, he sought a reduced head sentence and non-parole period. In effect, the crux of both appellants' submissions was that the judge, having erroneously understated their prospects of rehabilitation, had imposed head sentences and non-parole periods which were excessive. In these circumstances, we consider it appropriate to deal with the question of manifest excess in relation to both appellants.

56 In deciding whether a different sentence should be passed, we take into account the findings of the judge below with which we agree, the only exception being in relation to the question of rehabilitation on which, with the benefit of further material not available to the judge, we have reached conclusions more beneficial to the appellants. We also take into account the hardship caused to them by virtue of the pecuniary penalty orders made against them, and the fact that Wright is to be sentenced on the basis of a somewhat longer period of trafficking than is Gabriel. Weighed against that, however, is the fact that Wright made some, albeit limited, admissions to the police, whereas Gabriel made none. We also take into account the additional hardship Gabriel has experienced, and may continue to experience, as a result of being in prison with foot injuries. In all the circumstances, as matters stood at the time of sentencing, in each case the original sentence, orders for cumulation, and total effective sentence were appropriate. It is to be borne in mind that while the appellants were sentenced only in respect of relatively short periods of trafficking, these were serious offences (carrying a maximum penalty of 15 years) which called for sentences reflecting specific and general deterrence, denunciation and punishment to the offenders. However, regarding each matter, with the benefit of the further information placed before us, we are of the view that a shorter non-parole period is appropriate, namely a non-parole period of two and a half years as specified in the orders made in respect of Gabriel, and which orders will also be made in respect of Wright. This will allow each appellant a longer period of living in the community under the supervision of the Adult Parole Board and maximise their chances of staying drug free, and being rehabilitated.

[1] Drugs, Poisons and Controlled Substances Act 1981, s 71AA.

[2] Drugs, Poisons and Controlled Substances Act 1981, s 71AC.

[3] It seems that while Gabriel made no admissions, Wright in fact made some admissions, to which reference is made below.

[4] The count of trafficking cocaine related to a single transaction involving the sale of 7 grams to an undercover officer.

[5] At [3]-[4] of the reasons for sentence.

[6] 500 grams or more being a commercial quantity of that drug.

[7] At [14] of the reasons for sentence.

[8] At [15] of the reasons for sentence.

[9] At [17] of the reasons for sentence.

[10] I understand counsel to be referring to the plea in mitigation, rather than the plea at the committal.

[11] [2003] VSCA 203, [26].

[12] [1998] 2 VR 149

[14] See Crimes Act 1958, s 568(4) and R v Palmieri [1998] 1 VR 486, 490, (Brooking & Hayne JJA).

[15] At [1] of the reasons for sentence.