2. The offences occurred in the context of an undercover police operation in which various members of the Drug Squad masqueraded as participants in the drug culture and as persons willing to deal in illicit substances. One of them, having been approached by the applicant with an offer to supply him with amphetamine, was party to each of the three sales referred to above and to the final two transactions which occurred on the night of 26 October 1993. On that occasion the applicant and an accomplice travelled to Latrobe where it appears the applicant procured one ounce of amphetamine and thence to Wynyard where they were to exchange the amphetamine and cash for a quantity of cannabis to be supplied by the undercover policeman. The whole transaction was secretly recorded by a video camera and the amphetamine and money having been handed over, the police revealed their identity and effected arrests. There was in fact no cannabis with which the applicant could have trafficked on that occasion and his conviction and sentence therefor was quashed by this Court last year. The Crown then filed a fresh indictment charging him with attempting to commit the crime of trafficking in a prohibited plant. He pleaded guilty to it before me and was sentenced to four months' imprisonment cumulative upon the eighteen months' imprisonment imposed on count 5. Thereafter he applied for an extension of the time within which to make application for leave to appeal against the sentence on count 5, was given such an extension by Crawford J and his application came on for hearing in First Term. The sole ground of appeal is that the sentence of eighteen months' imprisonment "was excessive in all the circumstances".

3. The facts as presented to the learned sentencing judge were that on 16 September 1993 Police Officers Turale and Stewart were in the bar of the hotel at Pyengana. In the course of the evening the applicant entered and as the evening progressed he and Turale engaged in conversation. At closing time the applicant went to the bar door and called Turale aside, asking if he wanted to obtain amphetamine at a cost of $80 a gram. Having indicated agreement, Turale and Stewart travelled with the applicant to Rocherlea and in the course of the journey the applicant asked if Turale had access to good quality cannabis with a view to exchanging some for amphetamine. Turale intimated that such an arrangement was possible. En route the applicant parted company with the officers to make telephone calls and when they arrived in the Launceston area they went to the shopping centre at Ravenswood where the applicant took from a rubbish bin a crushed can from which he withdrew two pieces of foil containing amphetamine, one of which he passed to Turale who had already paid him the purchase price. The applicant then gave Turale a contact telephone number if he wished to purchase more amphetamine.

4. On 22 September 1993, as the result of telephone contact by Turale with the applicant, the former went to the Signal Station Tavern on the East Tamar Highway. About an hour later he received a telephone call from the applicant saying that he had amphetamine for sale. A meeting was arranged at Bridport an hour later. Arrived at Bridport, Turale received yet another phone call from the applicant who claimed to have had a vehicle breakdown and a further rendezvous was arranged at a road junction. Here the parties met and Turale showed his money. The applicant then directed him to return to the Signal Station Tavern where shortly thereafter the applicant exchanged a quantity of amphetamine for $200. Again the applicant told Turale he was looking to purchase cannabis or to swap amphetamine for it. He said he had access to high quality amphetamine on the mainland and said that he would exchange it for high quality cannabis. Turale indicated interest in such an exchange.

5. On 12 October 1993 Turale rang the applicant indicating willingness to purchase further amphetamine. He said he wanted half an ounce. The applicant told Turale to deposit $500 into the applicant's bank account at Burnie, which Turale did. Turale then advised the applicant by telephone that he had deposited the money and arrangements were made to meet at a Launceston hotel. After a number of meetings there, the applicant handed over five small plastic bags of amphetamine and again enquired about an exchange of amphetamine for cannabis. Turale said he would make enquiries and let the applicant know.

6. On Monday 25 October 1993 the applicant telephoned Turale saying that he had buyers for three pounds of cannabis and that they had $10,000 in cash. He also said he had good quality amphetamine for exchange. Turale said he would ring back and next day it was arranged that one ounce of amphetamine would be given as part of the purchase price of the three pounds of cannabis. After further telephone calls, a rendezvous was arranged for a hotel at Latrobe at 5.00pm on 26 October 1993. The applicant failed to appear but telephoned to say that he was late and Turale left at 10.00pm. Contact was again made by telephone an hour or so later and Turale and Stewart met the applicant, who was accompanied by one Sirgunas, near Penguin. Sirgunas produced $3,000 in cash and the applicant two bags of white powder. They then travelled in convoy to Burnie and thence to a motel at Wynyard where another police officer, masquerading as a drug dealer, had taken up his position, the room being under television surveillance. There the applicant produced one ounce of amphetamine to the value of $1,200 and Sirgunas the $3,000. It appears they were only then prepared to acquire one pound of cannabis instead of three pounds for a higher price. Shortly afterwards the police arrested both men.

7. The applicant, who was not represented by counsel before us, claimed that he was the victim of police entrapment. This is not a ground of appeal as we pointed out to him, although to the extent that evidence of any such entrapment was presented to the learned sentencing judge it was material which might have been of relevance in the sentencing process (R v Sang [1979] UKHL 3; (1980) AC 402 at 433, 443, 446 and 451). However, the Crown case as presented to his Honour was one in which the various dealings were initiated by the applicant and his counsel in the course of his plea in mitigation expressly stated that the facts presented by the Crown were not contested.

8. The applicant is a man of 31 and has a lengthy list of prior convictions including several for drug related offences (in 1982, 1984 and 1989). In addition, he has convictions for attempted arson, causing grievous bodily harm, wilful damage to property, assault and three for unlawfully injuring property. While he is not to be punished for his past offences and his sentence must not be disproportionate to the gravity of the offence, the fact that he has such an array of previous convictions is indicative of a lack of respect for the law and disentitles him to the leniency which could properly be extended to an offender with no or substantially fewer convictions. In circumstances such as these, where the offence is not an uncharacteristic aberration, the Court is entitled to place greater emphasis on the aspect of deterrence (Veen v R (No 2) [1988] HCA 14; (1987-1988) 164 CLR 465).

9. The applicant's part in the transactions the subject of the indictment was a deliberate engaging in the movement of illicit substances to a market. The incident of 26 October 1993 was not an isolated act of trafficking or attempted trafficking in such substances. The acts charged in the first three counts in the indictment were individual sales of amphetamine, and the attempt to traffic in cannabis had been preceded by a number of conversations in which he had advocated the exchange of amphetamine, to which he claimed to have access, for cannabis which he or his accomplice intended to further distribute. Although it was never made clear how much of the cash purchase price received by him for the first three transactions was retained by the applicant nor what reward he expected or received from Sirgunas, he clearly made some profit from his dealings, if only in the form of part of the amphetamine trafficked.

10. Nevertheless, although the applicant's conduct merited condign punishment, the sentence imposed, being additional to that imposed for the attempted trafficking in cannabis, all of which was part of the one transaction although extending the range of its consequences, was a severe one and one which counsel for the respondent acknowledged was at the top end of the range for offences of trafficking in amphetamine. Having regard to the relative smallness of the amount involved in terms of both value and volume, to the applicant's plea of guilty, to the fact that he was himself a person addicted to this substance and accordingly more susceptible, than one not addicted, to dealings in it which might supply him with the means of satisfying that addiction, I am satisfied that the imposition of a cumulative sentence at the top of the range was erroneous. The factors which I have mentioned, in my view, called for a sentence of imprisonment no greater than twelve months in duration. But for the presence of all of them I would find difficulty in seeing it as within this Court's province to intervene. However, for the reasons I have stated, a period of eighteen months' imprisonment in addition to that imposed for the trafficking (or as it was later corrected to, attempted trafficking) was manifestly excessive.

11. I would grant leave to appeal, quash the sentence of eighteen months' imprisonment imposed on count 5 and substitute therefor one of twelve months' imprisonment.

UNDERWOOD J I agree with the reasons for judgment of Cox J and the orders that he proposes should be made on this application.

WRIGHT J I agree with Cox J's analysis of the facts and his assessment of the gravity of the appellant's offence. I also agree with his conclusion that the application for leave to appeal should be granted and the appeal allowed. However, I have reached that conclusion by a slightly different route. Drug offences vary greatly in criminality (I use the word "drug" in this context in a broad generic sense rather than a technical or statutory sense). Trafficking in drugs is always serious but a consideration of the range of sentences imposed for this and other offences under the Poisons Act in recent years suggests that there have been significant unexplained variations in sentences actually imposed by individual members of the Court. The nature of the drug, its value or quantity, and the apparent status of the offender in the distribution chain, are all matters which should be taken into account and are thus capable of accounting for some of these differences, but even allowing for such factors it is difficult to detect an overall pattern in the sentences which have been imposed.

2. Nor do I lose sight of an additional complicating factor in making a comparison, viz the multiplicity of drug related offences which are provided for in the Poisons Act. Selling drugs (whether by actually tendering them to a purchaser or having them in possession for the purposes of sale), cultivating or manufacturing drugs, supplying or possessing drugs and the like, all constitute different offences which, though conceptually less serious than trafficking, can sometimes be deserving of quite severe punishment, a feature which is also apparent from a consideration of recent sentences. Consistency in sentencing is a desirable, if not imperative, requirement of the penal process and an offender who gets more than his just deserts when compared with those criminals who have preceded him, has a justifiable sense of grievance. This observation does not mean that a detailed case by case analysis or comparison is appropriate, nor does it mean that circumstances which materially alter cases should be ignored or overlooked, but, when it can be seen, as here, that the sentence imposed is at the high end of a widely fluctuating scale although the value of the drug was comparatively small, notwithstanding the appellant's obvious familiarity with and access to sources of supply, I think it must be said that the sentence was excessive, particularly as it was to be served cumulatively upon the sentence in respect of attempted trafficking in cannabis.

3. What I have said should not be taken as a departure from views which I have previously expressed about the undesirability of having a so called sentencing tariff for various offences. Nor should it be taken as expressing an opinion that, viewed apart from other sentences, the appellant's criminality did not merit a sentence of eighteen months' imprisonment. My sole reason for reaching the conclusions which I have expressed is that the sentence was disproportionate to broadly comparable sentences imposed in the recent past. I agree with my learned brethren that the sentence should be reduced to imprisonment for twelve months. That sentence should remain a cumulative sentence.