1. The history of the criminal proceedings leading to these appeals can be conveniently set out by extracting the introductory paragraphs from the appellant's written submissions prepared by his counsel, Mr Hughes, from [5] as follows:

5 Count 1 on the indictment pleads the trafficking in methylamphetamine or like substance between 1 June 2002 and 17 January 2013, a period of approximately 11 years.

6 Count 2 alleges trafficking in cannabis between the 1st June 2002 and the 30th July 2013, a period of approximately 11 years.

7 Count 3 alleges trafficking in MDMA or similar substance between the 13th March 2003 and the 1st January 2012, a period of approximately 9 years.

8 Count 4 alleges trafficking in alprazolam between the 20th May 2012 and the 28th November 2012, a period of approximately 6 months.

9 Count 5 related to the possession of a thing intended for the use in the manufacture of a controlled substance for sale, on or about the 12th June 2012, namely a document entitled "Secrets of Methamphetamine Manufacture".

10 Counsel for the Applicant at trial made application for an order that the Crown provide the Applicant with further and better particulars, namely particulars of each of the 4 counts of trafficking seeking particulars of each event or events upon which the trafficking is based. This application was opposed.

11 The learned trial Judge, by unpublished oral reasoning, ruled that the Applicant's case as outlined by the Crown met the description of conduct of drug trafficking as an on-going business as contemplated within the case of Giretti (1986) 24 ACrimR112.

12 As a consequence, the Crown was not required to particularise the act or acts which formed the foundation of the trafficking counts within the indictment.

13 The Applicant also appears not to have been furnished with particulars forming the basis of the assertion of an on-going business.

14 The Applicant further objected to the admissibility of evidence of the possession by the Applicant of firearms. The Applicant further objected to the admissibility of evidence of drugs argued as in the possession of the Applicant, but not forming one of the counts of the indictment.

15 His Honour received evidence on the voir dire at pages 629-637AB2, the reasons for ruling appear at AB2 655.

16 The learned trial Judge overruled the objection to the admissibility of the evidence complained of by the Applicant.

17 After the completion of the evidence, closing addresses and summing up, the jury retired to consider its verdict on the 12th August 2015.

18 The jury found the accused guilty in relation to counts 1, 2, 4 and 5 of the indictment. The Applicant was acquitted of count 3.

19 The Applicant was convicted on each remaining count and sentenced to 3 years imprisonment backdated to the 9th August 2015 with an order that he not be eligible for parole before serving 18 months of that sentence."

1. The appellant's amended notice of appeal against conviction contains six grounds of appeal as follows:

"1 That the learned trial judge erred by ruling that it was open to the Crown to plead counts 1 to 4 inclusive on the Indictment on a Giretti basis.

2 That the learned trial judge erred by not requiring the Crown to furnish particulars of each act relied upon forming the basis of each count of trafficking faced by the accused upon the indictment.

3 That the learned trial judge erred by finding that the indictment was not duplex.

4 That the learned trial judge erred by not requiring the Crown to provide to the Applicant particulars of the acts on which it relied to establish that the accused was engaged in the business of trafficking.

5 That the learned trial judge erred by ruling as admissible upon the trial of the Applicant evidence of possession by the Applicant of drugs which were not the subject of the counts on the indictment faced by the Applicant at trial.

6 That the learned trial judge erred by ruling as admissible evidence sought to be led by the Crown that the accused was in possession of firearms."

1. Before turning to those grounds of appeal, it needs to be observed that the learned trial judge was faced with the task of finding the factual basis upon which the appellant was to be sentenced consistent with the jury's verdicts. Those facts need to be understood in the context of the appellant's appeal against conviction, but because the Director of Public Prosecutions has appealed against sentence, it is convenient to here set out the learned judge's comments on passing sentence in full. His Honour made the following factual findings and comments:

"Mark Raymond Roland was found guilty by a jury of trafficking in amphetamine and methylamphetamine, trafficking in cannabis and trafficking in alprazolam. He was acquitted of trafficking in MDMA, commonly called ecstasy. He was also found guilty of possessing a thing intended for use in the manufacture of a controlled substance for sale. The Crown case was conducted on the basis described in Giretti and Giretti (1986) 24 A Crim R 112. In such a case of trafficking, the allegation is not of a specific act on a specific date, but that the criminal activity has regularity and a continuity that would enable it to be properly described as the conduct of an ongoing business. The jury need not be satisfied beyond reasonable doubt of each specific instance relied upon by the Crown, but it must be satisfied of the existence of a business. Thus, it follows from the verdicts that the jury was satisfied beyond reasonable doubt that for a period during the dates particularised in the indictment, the defendant conducted a business of selling drugs. He was engaged in a continuous drug selling activity of a commercial and systematic kind. To the extent that the facts do not emerge from the verdicts, it is my responsibility to make findings of fact for sentencing purposes. For the purpose of determining the factual issues between the Crown and the accused, I may only make findings adverse to an accused if satisfied beyond reasonable doubt they have been proved, and I may only make findings of fact in favour of an accused if they are proved on the balance of probabilities.

The Crown alleged that the defendant trafficked in amphetamine and methylamphetamine and cannabis between 2002 and 2013, and trafficked in alprazolam during a six month period between May and November 2012. During those years the defendant lived with his wife and children at 28 Ronald Street in Devonport. As well as the house on the property, there was a bungalow in the backyard, and another outbuilding containing the defendant's tattoo studio, a large lounge or living room area with a desk and filing cabinets, and a workshop area. The jury heard evidence of out of court statements made by a number of people. Letisha Bramich told the police on 6 June 2012, when she was 42, that she had been buying cannabis, amphetamine and ecstasy from the defendant since she was a teenager. She also said that 'for the last three years' she had been buying crystalline methylamphetamine, called Ice, from him about two times each week. Ice is sometimes sold in quantities of 0.1g, called a point, and she would usually buy two points for $200. Levi Hall was interviewed by the police on 9 March 2012. He told the police that he owed money to the defendant for amphetamine and Ice which he had purchased from him at the Ronald Street property on credit to use and sell. He said he paid for drugs with money and jewellery and that the defendant stored drugs in a drawer in the desk in the living room. Mr Hall made a statutory declaration on 6 February 2013. In the declaration he said that he sold drugs for Mr Roland between 2010 and 2012 to obtain money for his own drug habit. He made statements about how much he had paid for the drugs and how much he sold them for. He also said that he saw other people go to the tattoo studio to buy drugs. A short time before the trial he told others that if the defendant had drugs 'he would sell them' and that he was the defendants 'little wing man'. Kianna Whaling made a statutory declaration to the police on 24 January 2013 when she was 15. The declaration included statements to the effect that she first went to Mr Roland's property in mid-2012 and over the following months went there on a number of other occasions. She said that she saw other people come to the property to buy what looked to her to be Ice, which the defendant would remove from his desk and weigh out using scales into small zip lock bags. She said that on one day in July 2012 she saw about 20 people come and go for this purpose. On other occasions, over a period of months, she witnessed sales of amphetamine as well as Ice to, she thought, about 50 people in all.

The jury heard evidence of out of court statements made by Ms Bramich, David McCulloch and Matthew Whitchurch that, on 12 May 2012, they went to the defendant's property and exchanged firearms they had stolen for money and a small amount of Ice. The jury also heard evidence about the police interception of persons leaving the defendant's premises in possession of drugs of various types. Some gave evidence. All denied that they obtained the drugs found in their possession from Mr Roland although some gave explanations I regard as implausible. One such person was found in possession of two Xanax tablets, which contain alprazolam, in a small snap lock bag. Another such person was Nacilla Barrett. She was intercepted after leaving the defendant's premises in the early hours of 17 January 2013. She had a bag of powder later found to be 2.5g of methylamphetamine which she gave to a companion to hide. She made a statutory declaration on 23 January 2013 in which she admitted being a long term user of amphetamine, that she purchased amphetamine from the defendant on 16 January 2013 and that she had been buying amphetamine from the defendant since September of 2012.

Suspicious of the defendant's activities, the police frequently searched all the buildings on the property. In searches conducted in 2012 some drugs were found in the house and in the external living area, including alprazolam in the form of Xanax tablets, amphetamine, methylamphetamine, cannabis, cocaine, Viagra and vials of steroids. None of the drugs were in large quantity and in some cases, only traces were detected. The police also found larger quantities of dimethylsulphone, called MSM, which, when wet, forms a white crystalline substance and is used as a cutting agent for Ice. They found Glucodin, a common cutting agent for amphetamine. During a search on 25 November 2012 they found firearms, ammunition and some jewellery under a trapdoor in the floor of the hallway of the house. With the firearms were snap lock bags containing a total of about 18.5g of ephedrine, in the form of 250 tablets. Ephedrine is a drug used in the manufacture of Ice and is not generally available in Australia in tablet form. On an earlier search the police found a small bottle of iodine in a filing cabinet in the external living room. Iodine is also used in the manufacture of Ice. Other drug paraphernalia found included numerous sets of digital scales, all with traces of amphetamine on the weighing pan, and numerous snap lock bags, some new and some containing small quantities of drugs. The police also found a handwritten note and some mobile phone messages the Crown alleged pointed to drug sales. The defendant had a closed circuit television surveillance system, installed after many such systems had been confiscated by the police on earlier occasions. The defendant is a long term drug user. He offered explanations for the evidence I have referred to. He claimed that his house was constantly used by others as a place to congregate late at night to use drugs, and that the items found by the police were from the purchase and use of drugs by him, the use of drugs by others, or were related to his tattoo studio. He claimed to have the MSM to divert the police searches for Ice. He claimed that he possessed firearms because of a lifelong interest in them. He denied ever selling drugs. The jury did not believe him nor did his explanations lead them to a reasonable doubt about his guilt.

Evidence of the out of court statements I have referred to may be unreliable. None of those who made the incriminating statements gave evidence in court to the same effect. Mr Hall, at least, is criminally concerned in the defendant's conduct. The out of court statements made by Ms Bramich, Mr McCulloch and Mr Whitchurch about the 12 May 2012 burglary were inconsistent, and each sought to minimise their own involvement. Some or all of what Mr Hall, Miss Barrett and Ms Bramich told the police may have been motivated by the wish to protect themselves or others, or obtain favourable treatment concerning other charges they faced. The jury was given directions about all of these matters but were satisfied beyond reasonable doubt of the existence of the drug selling business. My findings must be consistent with the verdicts. It remains for me to make findings about the period over which the business was conducted and the extent of it.

I think it must follow that, taking into account the combined effect of all the evidence, the jury was satisfied beyond reasonable doubt of the truth of some, but not all, of what was said by Mr Hall, Miss Bramich, Miss Barrett and Miss Whaling about the defendant trafficking in speed, Ice and cannabis. The only real evidence of trafficking in ecstasy, of which the defendant was acquitted, came from Miss Bramich. It follows that the jury must, as I do, have had a reasonable doubt about some of her evidence. I am not satisfied of trafficking prior to 2010. Evidence of events before then comes only from Miss Bramich and, to a lesser extent, from Mr Hall, and I am not satisfied about it to the criminal standard. I am not satisfied beyond reasonable doubt that the defendant sold for re-sale as was described by Mr Hall to the police in 2012 and 2013. Nor am I satisfied to the criminal standard of the truth of Mr Hall's statements to the police, and others, that he sold drugs on Mr Roland's behalf at other locations, or that Mr Roland is otherwise criminally responsible for sales of drugs made by Mr Hall or anyone else. However_, consistently with the verdicts, I would sentence the defendant on the basis of my satisfaction beyond reasonable doubt that, for the period between 2010 and early 2013, the defendant systematically sold amphetamine and methylamphetamine, including in its crystalline form, and cannabis, on a commercial basis from his property at Ronald Street. For six months in 2012 he trafficked in alprazolam._ During the period to which I have referred, the Ronald Street premises was a place where people routinely went to buy drugs, mostly speed and Ice, but also cannabis, and, in 2012, alprazolam. I am satisfied that Mr Roland sold drugs as the final point of distribution, that is, to users of drugs. The business existed by 2010 and operated, from then until early 2013, substantially in accordance with Miss Whaling's observations of it in 2012, as she described to the police in January 2013. It is impossible to determine, in any precise way, the total scale of the business or the quantities involved, or how much money was made from it_. However the defendant must, over a period of about three years, have sold drugs on at least hundreds of occasions. Sales of speed and Ice were most likely in quantities for use, between a point and an eighth of an ounce._ I am not satisfied beyond reasonable doubt that it was a place from which drugs could be purchased when Mr Roland was not present, although he was usually there and available to sell drugs to those who wanted them.

During the search conducted on 12 June 2012 the police found a document entitled 'Secrets of Methylamphetamine Manufacture'. It gave workable instructions for the manufacture of methylamphetamine. There is no evidence of any manufacture or attempted manufacture of the drug. However, it follows from the verdict that the defendant possessed the document intending to use it to manufacture methylamphetamine for sale, at least in part.

The defendant is now 46. He has three adult children and one dependent child. He and his wife live in the same house but they are separated. He had a good industrial record until he became a self-employed tattooist. He has used illicit drugs since he was teenager. Consistently with that history his record is mostly for drug-related driving offences. He was fined in 2001, 2007, 2008 and 2012 for possession of drugs. In the case of the 2002 and 2008 offences he was also fined for possessing a firearm without a licence. He has no prior convictions for anything as serious as this. He was sentenced to three months' imprisonment, all but 22 days of which was suspended, for firearms offences related to the firearms found at his house on 25 November 2012. He was also sentenced to three month's imprisonment for further firearms offences committed in early 2013. Neither of those sentences are prior convictions for sentencing purposes. The Crown submitted that the presence of firearms at the defendant's home is an aggravating factor in the trafficking charge. I do not agree. It is double punishment to take into account, as an aggravating factor, acts for which he has already been punished. Nor do I accept the defence submission that the punishment for the firearms offences is to be taken into account in reduction of the sentence for trafficking. The defendant is to be punished for trafficking, not possession of firearms, which was relevant only as circumstantial evidence of the trafficking. The Crown also asked that I treat as aggravating the death of a young woman at the house from an overdose during the relevant period. I do not propose to do so. It is an example of the tragic consequences of drug abuse, but sufficient connection to the defendant's criminal conduct has not been established.

This case should have been brought to trial sooner than it was. The delay was not the fault of the defendant. It has not resulted in any particular unfairness to him although he has been subject to the stress and anxiety of having to wait longer than necessary for trial. It is a mitigating factor but not a powerful one.

Those who traffic in illicit drugs deserve harsh punishment. It is an evil trade. Traffickers prey on the vulnerability and human frailty of others for profit. Ice, in particular, is highly addictive and harmful to health. It causes misery to those who become addicted to it and to the people around them. This Court commonly deals with serious crimes of dishonesty and violence arising from its use and influence. Its use is a matter of increasing concern to the community and the courts. The defendant's criminal conduct was over a long period, is likely to have affected the lives of very many of people and, I am satisfied, was motivated only by profit. It continued despite the obvious suspicion of the police thereby indicating contempt for the law and for authority. The nature, scale and extent of the defendant's trade demands a substantial sentence of imprisonment. He is not entitled to the mitigation a plea of guilty may have attracted. He has displayed no remorse and no sign of caring about the consequences of his crimes. Deterrence, both of the defendant and others who may be minded to act in the same way, is a particularly important sentencing factor.

Mark Raymond Roland, you are convicted on counts 1, 2, 4 and 5. I adjourn the application made by the Crown for a forfeiture order to a date to be fixed. I impose one sentence. You were remanded in custody on 14 August 2015. Most of the days you spent in custody before then have already been taken into account in other sentences. Doing my best to calculate on the material available to me, I will allow five days not yet taken into account. Thus I will backdate your sentence to 9 August 2015. You are sentenced to imprisonment for three years from that day. I order that you not be eligible for parole until you have served 18 months of that sentence. You will pay the victims of crime compensation levy of $200 within 28 days of today." (Emphasis added to highlight his Honour's findings as to significant facts for sentence.)

Grounds 1 to 4 of the appellant's notice of appeal

1. Grounds 1 to 4 of the appellant's notice of appeal can be considered together. It will be recalled they are as follows:

"1 That the learned trial judge erred by ruling that it was open to the Crown to plead counts 1 to 4 inclusive on the Indictment on a Giretti basis.

2 That the learned trial judge erred by not requiring the Crown to furnish particulars of each act relied upon forming the basis of each count of trafficking faced by the accused upon the indictment.

3 That the learned trial judge erred by finding that the indictment was not duplex.

4 That the learned trial judge erred by not requiring the Crown to provide to the Applicant particulars of the acts on which it relied to establish that the accused was engaged in the business of trafficking."

1. These grounds can be considered together because, if the crime of trafficking in a controlled substance contrary to s 12 of the Misuse of Drugs Act 2001 (the Act), is a "continuous" or "continuing" offence, then it is a recognised exception to the rule against duplicity. Giretti and Giretti (1986) 24 A Crim R 112 to that effect was cited with approval by the High Court in Walsh v Tattersall (1996) 188 CLR 77 by Dawson and Toohey JJ at 87, and by Kirby J at 108. Kirby J said at 107:

"Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs." (Footnote [97] cited Giretti and Giretti (1986) 24 A Crim R 112; R v Locchi (1991) 22 NSWLR 309 at 312; R v Goodfellow (1994) 33 NSWLR 308.)

1. And if the crimes charged were continuing crimes recognised as a qualification to the rule against duplicity then there was no requirement for the Crown to furnish particulars of each act relied upon forming the basis of individual counts of trafficking.
2. Finally, if conduct which need not, but in some circumstances might, be constituted by activity over time can quite properly be charged in a single count, then full disclosure of the evidence to be relied upon at trial as establishing that single count is all that is required to allow an accused person to know the case that he or she is required to meet. That case is frequently likely to be a circumstantial case, the best particularisation of which would be full disclosure of the evidence to be relied upon. As Ormiston J said in Giretti at 124:

"The real issue is whether under either Act the word 'traffic' or 'traffick' should be confined to separate identifiable acts of trafficking, whether by sale, offer, receipt, or delivery of drugs or at the least, of participation in the movement of drugs from the source to the consumer or whether it means additionally, or perhaps only, 'to carry on a trade or business of dealing in drugs'. If the latter be correct then the offence, at least in the latter meaning is a continuous one, and in the absence of admissions to that effect it would have to be proved by circumstantial evidence from which the jury could be invited to infer that the trade or business of trafficking in drugs had been carried on over the alleged period." (Emphasis added.)

1. I do not accept the submission made on behalf of the appellant that the appellant "was required to answer an unspecified number of individual criminal acts which in themselves would represent a breach of the law by the possession, sale or use of illicit substances", and that in the absence of particularisation he was denied a fair trial. The appellant clearly understood the nature of the circumstantial case against him. Moreover, as Ormiston J said in Giretti at 130:

"... the continuing offence of trafficking ... cannot ordinarily be established by proving merely a number of transactions over a period of time; rather it is the inference to be drawn from those transactions which is critical to the jury's consideration whether the continuous offence of trafficking has been made out ... ."

1. The learned trial judge dealt with the question of whether the offence was a continuing one, the question of duplicity, and the question of the provision of particulars in a ruling in which he said:

"I have concluded that whether further particulars are required, and the nature of the particulars, depends on the basis of the Crown case. To explain the conclusion I have reached it is necessary to refer to the meaning of the term 'traffic' in the Misuse of Drugs Act. It is defined in s 3 in the following terms:

'"traffic", in relation to a controlled substance, includes -

(b) prepare the substance for supply with the intention of selling it or in the belief that another person intends to sell it; and

(c) transport the substance with the intention of selling it or in the belief that another person intends to sell it; and

(d) guard or conceal the substance with the intention of selling it or in the belief that another person intends to sell it; and

(e) possess the substance with the intention of selling it; and

(f) import the substance into Tasmania with the intention of selling it or in the belief that another person intends to sell it.'

The definition is an inclusive definition. An inclusive definition extends, enlarges or amplifies the ordinary meaning of a word; see Pearce & Geddes, Statutory Interpretation in Australia, 8th ed at par 6.60. This definition extends the ordinary and natural meaning of the word 'traffic' to include conduct which may not otherwise fall within that meaning. It reveals a Parliamentary intention to add to the ordinary meaning of the word, the effect of which is to make the crime of 'trafficking' easier to prove. However it does not displace the word's ordinary meaning. The word 'trafficking' has an ordinary meaning which is to deal in or trade in. In its ordinary meaning, trafficking in a drug is the process by which it runs from the manufacturer to the ultimate consumer. It is a process of movement for commercial gain. Commonly there is a chain of distribution stretching from the manufacturer to the ultimate retail sale to a consumer. Although there may be many steps in that process there may be only a few. Everyone who knowingly plays any part in the process whereby the product gets from one to the next is trafficking.

I was informed that the Crown case is that the accused is in the business of selling controlled drugs over a long period. To my mind, the basis of the Crown case is to be distinguished from a case based on an acts or acts which fall within the extended definition in the legislation to which I have referred. I will first refer to the case as explained to me by counsel for the Crown. No objection is taken to the indictment on the grounds that it is duplicitous. That is so, I infer, because the accused accepts that a single charge of trafficking may be constituted by activity over time. That trafficking in drugs is a qualification to the rule against duplicity has been found in Giretti and Giretti (1986) 24 A Crim R 112, cited with approval by the High Court in Walsh v Tattersall (1996) 188 CLR 77 by Dawson and Toohey JJ at 87 and by Kirby J at 108, and numerous other cases subsequently. As I understand it, the manner in which the Crown case is put on counts 1 to 4 inclusive is often referred to as a 'Giretti' count. Where a count is pleaded on a Giretti basis the allegation is that the activity has regularity and a continuity that would enable it to be properly described as the conduct of an ongoing business. In its ordinary meaning, the term trafficking embraces a continuing activity over a period of time involving commercial dealings in the controlled drug. In Giretti, Crockett J said at 117:

'If the case being advanced is that a business was being carried on, that is that it was a continuing offence, then that is what must be proved to establish the single offence charged in the count. It is not proper to plead a number of individual acts of trafficking (perhaps because it is not possible to match each to a particular date or approximate date) on the basis that the jury can find at least one offence committed during the stated period; still less that different jurors might be satisfied as to different acts of trafficking so long as they were all satisfied as to at least one.'

'In my opinion, the continuing offence of trafficking ... cannot ordinarily be established by proving merely a number of transactions over a period of time; rather it is the inference to be drawn from those transactions which is critical to the jury's consideration whether the continuous offence of trafficking has been made out by proof of a trade or business of dealing in drugs.'

Ormiston J also observed at 141 that the jury should be told it needs to be satisfied that the alleged commercial activity extended over a period of time which broadly corresponds with the period specified in the count. The prosecution might succeed without establishing beyond reasonable doubt any particular instance of drug trafficking. On the other hand, the prosecution might fail although it has established beyond reasonable doubt particular instances of drug trafficking. See also R v Komljenovic (1994) 76 A Crim R 521 at 550; R v Komljenovic [2006] VSCA 136; (2006) 163 A Crim R 298 in respect to which special leave to appeal to the High Court was refused. In my view, the case so pleaded is consistent with the Tasmanian legislation by application of the ordinary meaning of trafficking."

1. In my view the learned trial judge's reasoning and conclusion in that ruling are without error. I do not accept the submissions made on behalf of the appellant that Giretti is distinguishable either on its facts or as a result of any differences between the relevant statutory provisions under consideration in that case and those contained in ss 3 and 12 of the Act. It is the principle derived from Giretti that is important and of relevance to the present case, and that principle, clearly endorsed by the High Court in Walsh v Tattersall (above), is, in my view, not in any way confined to the facts of Giretti.
2. Every case will be factually different but given that a jury needs only to be satisfied that the alleged commercial activity extended over a period of time which broadly corresponds with the period specified in the count, and that the prosecution might succeed without establishing any particular instance of drug trafficking, or fail although it has established particular instances of drug trafficking, the relevant principle cannot be particularly fact dependent.
3. Two sets of statutory provisions were considered in Giretti, namely the Poisons Act 1962 (Vic) and the Drugs and Poisons and Controlled Substances Act 1981 (Vic). The Poisons Act contained no definition of the word "traffic", whereas the Drugs and Poisons and Controlled Substances Act did. The conclusion that the crime of trafficking could, consistent with its ordinary dictionary meaning, be a continuing offence, and that as such it constituted a qualification to the rule against duplicity, was reached in respect of both of those Acts.
4. More relevant for present purposes however are the provisions of the Drugs and Poisons and Controlled Substances Act. The definition of the word "traffick" in s 70(1) of that Act provides as follows:

"'Traffick' in relation to a drug of dependence includes -

(a) prepare a drug of dependence for trafficking;

(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence."

1. The definition of traffic in s 3 of the Act provides as follows:

"'traffic', in relation to a controlled substance, includes -

(b) prepare the substance for supply with the intention of selling it or in the belief that another person intends to sell it; and

(c) transport the substance with the intention of selling it or in the belief that another person intends to sell it; and

(d) guard or conceal the substance with the intention of selling it or in the belief that another person intends to sell it; and

(e) possess the substance with the intention of selling it; and

(f) import the substance into Tasmania with the intention of selling it or in the belief that another person intends to sell it;

1. As can be seen, the definitions are both inclusive definitions of the word "traffic" (or "traffick") and are not exhaustive definitions. That is the relevant similarity. In my view any differences between the two provisions in the specification of the things that are included within the ordinary meaning of the word "traffic" are immaterial. What is important is that both definitions are inclusive and not exhaustive definitions, with the result that neither displace the ordinary meaning of the word "traffic".
2. In my view there is no merit in grounds 1 to 4 of the notice of appeal.

1. It will be recalled that ground 5 contends that the learned trial judge erred by ruling as admissible evidence of possession by the appellant of drugs which were not the subject of the counts on the indictment.
2. In my view this ground is also devoid of merit.
3. The learned trial judge dealt with this issue in a discrete ruling ([2015] TASSC 38) in the following terms:

"1 Mark Roland is charged with crimes under the Misuse of Drugs Act 2001. By indictment filed on 14 July 2015 he is charged with four counts of trafficking and one count of possessing a thing intended for use in manufacture of a controlled substance for sale, the thing being a document alleged to be an instruction document for methylamphetamine manufacture. Each trafficking count concerns a different drug, namely a substance which is or is similar to amphetamine or methylamphetamine, cannabis, a substance which is or is similar to MDMA and alprazolam. I have been asked to rule on the admissibility of evidence. Objection is taken by the accused to the admission of any evidence of possession by the accused of, firstly firearms, and, secondly, a drug which is not the subject of one of the counts in the indictment.

2 The Crown case is that the accused conducted, over a period of time, the business of selling drugs, the type of case referred to in Giretti (1986) 24 A Crim R 112. The accused cannot be convicted on a count unless the Crown proves beyond reasonable doubt that for a period during the period alleged in that count, not necessarily the whole period, that the accused was engaged in a continuous activity of a commercial and systematic kind.

(b) that the evidence should not be received by operation of the Evidence Act 2001, s 137;

(c) that the accused has already been convicted or acquitted of offences arising from the same conduct.

4 I have regard to the contents of the Crown papers to which I have been referred. The Crown intends to adduce evidence of searches, principally of premises occupied by the accused, at which firearms were found. Also found were various quantities of other drugs. I would not exclude that evidence on the basis that it is irrelevant. The evidence of firearms is relevant for the reasons explained in Sultana v The Queen (1994) 74 A Crim R 27 per Gleeson CJ at 29-30; R v Blackwell (1996) 87 A Crim R 289 at 290; R v Edwards [1998] 2 VR 354 at 368 per Eames AJA, and R v Georgiou [2009] VSCA 57 at [65]. Those authorities have particular application to a case brought on the basis that the accused was in the business of selling drugs. For the same reason I regard the evidence of the presence of other drugs as also relevant: see Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417, a decision of the Court of Criminal Appeal in Western Australia. To adapt the words of the Chief Justice in that case at [9], if the accused was involved in a drug business at the time of the search, then in the absence of any alternative explanation, it was reasonable to regard other drugs found in the premises and drug paraphernalia as part of the business of the sale and supply of drugs, even if those drugs are not the subject of a particular count. I refer to the passage of the decision at [29] and following. The conclusion I have reached is reinforced by the decision of the Victorian Court of Appeal in R v Komljenovic [2006] VSCA 136; (2006) 163 A Crim R 298. Evidence of possession and sale of drugs not the subject of the indictment can show a continuing trade in drugs of several kinds. That is particularly so in this case because of the circumstances, on the Crown case, in which the other drugs were found which suggest a connection with the accused and with other evidence tending to prove the Crown case. Special leave to appeal to the High Court against the Court of Appeal's decision in Komljenovic was refused.

5 I would not refuse to admit the evidence under s 137 of the Evidence Act. That section provides that 'in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant'. This is a balancing exercise involving the making of the judgment and not the exercise of the discretion. If the probative value is judged to be outweighed by the danger of unfair prejudice, exclusion must follow.

6 'Probative value' is defined in the Evidence Act, s 3(1), to mean 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the prosecution will be drawn: KMJ v Tasmania [2011] TASCCA 7; (2011) 20 Tas R 425. In the circumstances of this case I would regard the evidence both of the firearms and of the other drugs as of high probative value. The circumstances in which the firearms were found, and the nature of the firearms, fall squarely within the considerations discussed in Sultana and the other cases to which I have referred. Not only that, there is also evidence that the firearms may well have formed part of the stock in trade of the business, that is, for exchange for drugs. The Crown intends to adduce, without objection, evidence of a transaction whereby stolen firearms and associated items were exchanged for drugs.

7 I do not see that there is a substantial risk of unfair prejudice. What amounts to 'unfair prejudice' under s 137 was considered in KMJ. Evidence is not unfairly prejudicial to an accused for the purposes of s 137 merely because it makes it more likely that the accused will be convicted. The prejudice referred to is unfair where there is a real risk that the evidence will be misused by the jury in some unfair way. In W v The Queen [2006] TASSC 52; (2006) 16 Tas R 1, Blow J (as he then was) at 43, referred to the comments in Report No 26 of the Australian Law Reform Commission, Vol 1 at par[644] as '... a very useful exposition ...'. That exposition is as follows:

'By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.'

8 There is some danger that the jury will use the evidence as evidence of propensity. However it is commonly the case that juries hear evidence of uncharged conduct which carries that risk and are carefully directed against use of the evidence on that basis. The risk of unfair prejudice can be adequately dealt with by direction. I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice."

1. The gravamen of the appellant's complaint as to the learned trial judge's ruling is that the evidence of mere possession of illicit substances, not the subject of the indictment, is not relevant to the question of whether the appellant trafficked in other substances, as it is not capable of rationally affecting the probability of a fact in issue upon a count of trafficking.
2. I do not accept that submission. In IMM v The Queen [2016] HCA 14, 90 ALJR 529, the High Court was concerned with the meaning of the words "significant probative value" in s 98(1) of the Evidence Act, and in holding that the significance of the probative value must depend on the nature of the fact in issue, French CJ, Kiefel, Bell and Keane JJ said at [46] that "the evidence must be influential in the context of fact finding". (Emphasis added.) (See also R v Matonwal [2016] NSWCCA 174, per Bathurst CJ at [77]-[78], Rothman J [94] and McCallum J [95].)
3. In my view, contrary to the appellant's submission, the evidence did not need to go beyond mere possession in order to be capable of establishing that the appellant was engaged in the business of selling the substance in question as a part of an overall business and trade in drug trafficking in order for it to be "influential in the context of fact finding" in a circumstantial case such as that under consideration.
4. The learned primary judge's conclusion that evidence of possession and sale of drugs not the subject of the indictment can show a continuing trade in drugs of several kinds is unimpeachable. As his Honour said, it was particularly so in the present case because of the circumstances, on the State's case, in which the other drugs were found, which suggested a connection between the appellant and other evidence tending to prove the case against him. I accept the written submissions to this effect made by Mr Shapiro, counsel for the Director of Public Prosecutions.
5. Finally as to this ground I observe that his Honour's conclusion was reinforced by and not solely based upon the decision of the Victorian Court of Appeal in R v Komljenovic [2006] VSCA 136, 163 A Crim R 298. Any criticism of his Honour's reasoning based on the precedential value of that case or its reach is not of assistance on this ground.

1. This ground of appeal as already noted above asserts that the learned trial judge erred by ruling as admissible evidence sought to be led by the State as to the appellant's possession of firearms. His Honour dealt with this objection in the same ruling referred to above in relation to ground 5. While the question of relevance is raised in the appellant's submission in relation to this ground, the complaint of error, as I apprehend it, focuses principally on the contention that the learned trial judge erred in admitting the evidence as the appellant was the beneficiary of an acquittal in relation to a charge concerning the possession of the firearms after police offered no evidence before a magistrate. It is argued that therefore the appellant was entitled to the full benefit of the acquittal, including the preclusion of the evidence proposed to be led by the State that raised the circumstances surrounding that charge. The appellant relies on the decision in State of Tasmania v Finnegan [2011] TASSC 74, 21 TasR 116 and R v Carroll [2002] HCA 55, 213 CLR 635.
2. The learned trial judge in his ruling as to this aspect stated as follows:

"11 The remaining issue gives rise to different considerations. The accused's house was also searched on 1 June 2012. Firearms were found. By complaint 52732/12 dated 6 June 2012 the accused was charged with breach of a Family Violence Order contrary to the Family Violence Act 2004, s 35. Under s 16 of that Act a court of summary jurisdiction may make an order including such conditions as the court considers are necessary or desirable to prevent the commission of family violence against an affected person, or to protect any other person named in the order. The conditions may include a requirement that the person against whom the order is made is to not possess firearms specified in the order, or forfeit or dispose of any firearms in his or her possession. The order alleged in the complaint to have been made was not made in Tasmania. It was made by a Magistrates Court of Queensland. The Tasmanian legislation provides, by s 27, for registration of orders made in another State. Registered orders have the same effect as an order made in Tasmania and may be enforced as if they were made and served in this State. The complaint alleged that the order made against the accused was made in Queensland on 30 November 2011, was in effect on 1 June 2012, and had as a condition that the accused 'surrender all weapons possessed ... to a police officer as soon as practicable'. The legislation in place in Queensland when the order was made was the Domestic and Family Violence Protection Act 1989 (Qld). That Act has now been repealed. It provided that the court making the order may impose conditions on persons against whom the order is made. It defined the term 'weapon' by reference to the Weapons Act 1990 (Qld). In that Act the term includes a firearm. The complaint against the accused alleged that the order was breached on 1 June 2012 because the accused had in his possession on 1 June 2012 three firearms and a quantity of ammunition.

12 In the absence of evidence that the firearms in the possession of the accused on 1 June 2012 were in his possession in Queensland on 30 November 2011, and he had not surrendered them, the complaint of a breach of the Family Violence Act could not have succeeded. The order made in Queensland required the accused to 'surrender all weapons possessed'. The complaint did not allege a condition of an order that the accused not possess firearms in the future. The complaint did not allege any other breach. It seems that the significance of this became apparent to the prosecutor in Tasmania because, on 14 January 2013, the Magistrates Court was informed that no evidence was to be tendered on the complaint and it was dismissed.

13 It is submitted on behalf of the accused that no evidence of the firearms found at his home on 1 June 2012 should be admitted, because to do so would deny the accused the full benefit of the dismissal of the complaint, which amounts to an acquittal from that charge, and would undermine the incontrovertible nature of the acquittal. The accused relies on the determination of Blow J in State of Tasmania v Finnegan [2011] TASSC 74; (2011) 21 Tas R 116. In that case his Honour said, at [4]:

'There is a body of High Court authority that makes it quite clear that, when there is an acquittal in relation to a charge of a crime or offence, the defendant or accused person who has been acquitted is entitled to the full benefit of that acquittal in subsequent criminal proceedings and that, on a subsequent criminal trial, the acquittal in the earlier proceedings is incontrovertible. That rule has emerged from the High Court decisions in Garrett v R [1977] HCA 67; (1977) 139 CLR 437, R v Storey [1978] HCA 39; (1978) 140 CLR 364, and Rogers v R (1994) 181 CLR 251.'

14 A little later in his reasons, at [8], his Honour said this:

'I think it must follow that, at least as a general rule, when a magistrate acquits a defendant as a result of a prosecutor informing the magistrate that no evidence will be tendered, then that defendant in subsequent criminal proceedings is entitled to the full benefit of the acquittal, and that therefore no evidence may be adduced in those subsequent criminal proceedings of the defendant doing acts which could have led to a conviction on the charges which have been dismissed. That result, I think, is consistent with the reasons for the rule in question which were discussed and thoroughly analysed by Gleeson CJ and Hayne J in R v Carroll (2002) 213 CLR 635. Those reasons have to do with 'the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality'; per Gleeson CJ and Hayne J at par[23]. They do not have anything to do with the sanctity of the conclusions of juries per se. They have to do with much more general matters. So, as a general rule then, an acquittal may not be controverted in subsequent criminal proceedings, and in particular it may not be controverted by the leading of evidence of acts within the scope of charges that have been the subject of acquittals.'

15 During a short voir dire I heard evidence about why the prosecution decided not to proceed with the charge after the matter had been listed for hearing at least once, but adjourned. I regard the evidence as irrelevant to the issue I am to determine. Whatever the reason that led the prosecution to tender no evidence in respect of the family violence offence complaint, the rule is that an order amounting to an acquittal must not be controverted in later proceedings. However, I think that the cases referred to by Blow J in Finnegan do not support a proposition as broad as that advanced by the accused in this case, or lead to the conclusion that the evidence sought to be led in this case should be excluded. The admission of evidence of the firearms alleged to have been found during a search on 1 June 2012 does not deprive the accused of the benefit of an acquittal of the family violence charge, and does not inevitably challenge the verdict of acquittal. In R v Carroll the High Court considered an argument concerning perjury proceedings which involved the same issue that had been the subject of the acquittal of the respondent for murder. The verdict of acquittal necessarily meant that the jury had not rejected the respondent's denial that he killed the child. That inconsistency being manifest, Gleeson CJ and Hayne J said at [42] that 'the case for a stay of proceedings was irresistible'. Their Honours pointed out that the principle that an acquittal is incontrovertible rests upon an acceptance that what is decided in litigation is final. However, their Honours provided an important qualification at [50]:

'Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z [2000] UKHL 68; [2000] 2 AC 483], R v Arp [1998] 3 SCR 339] and R v Degnan [2000] NZCA 321; [2001] 1 NZLR 280] are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.'

16 Their Honours referred to Rogers and Garrett and commented that 'those authorities support the proposition that a prior acquittal itself cannot subsequently be controverted; it is unnecessary here to decide whether they support any wider proposition'. In the same case Gaudron and Gummow JJ, after referring to Rogers and Garrett, referred to Storey in these terms:

'However, in R v Storey, Stephen, Mason, Jacobs and Aickin JJ held that relevant evidence tending to show that the accused was guilty of an offence of which the accused had been acquitted may be admitted, but only if the jury can be and is directed not to interpret it in such a way as to deny the acquittal. In Storey, the two accused had been acquitted on a charge of forcible abduction; at their subsequent trial for rape, evidence was admitted which tended to show the forcible abduction of the victim, but without it being made clear to the jury that the evidence must not be taken as proving guilt on the previous charge. This Court dismissed the Crown appeal against the quashing of the conviction.'

17 I refer also to the decision of the High Court in Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492. The line of authority to which Blow J referred has been considered in subsequent cases by intermediate courts of appeal in Australia. The Court of Appeal in Western Australia undertook a detailed review of the cases in Bennett v The State of Western Australia [2012] WASCA 70. That case concerned evidence of convictions relied on by the Crown rather than acquittals. The Court of Appeal in Victoria reviewed the authorities in Ulutui v The Queen [2014] VSCA 110, as did the Court of Criminal Appeal in Gilham v The Queen [2012] NSWCCA 131; (2012) 224 A Crim R 22. In Gilham, the New South Wales Court of Criminal Appeal held that the trial judge did not err in allowing the Crown to adduce evidence which cast doubt upon the applicant's previous acquittal of murder of his brother while prosecuting the later charges of murder against his parents. The Court said at [22]:

'[T]he Crown was entitled to undermine the earlier acquittal solely as an incident of, or step along the way to, proving that the applicant murdered his parents. The Crown could not, and did not, mount a standalone argument that the applicant was criminally responsible for murdering [his brother]. The Crown made that insinuation only to the extent necessary to prove that the applicant murdered his parents.'

18 In Ulutui the Victorian Court of Appeal found that a trial judge did not err by admitting evidence of an assault of which the accused had been acquitted as evidence of motive for other later crimes of violence. In that case, the Court reviewed the authorities and concluded that evidence of the assault did not contravene the rule that an acquittal may not be controverted in later proceedings. It said at [50]:

'This was not a case in which there was any inherent inconsistency between the appellant's prior acquittal on the Coles assault and evidence of the charged offences. The jury was not required to determine whether the appellant was guilty of the Coles assault in order to find that he was guilty of the charged offences. Moreover, the jury was not required to come to any conclusion with respect to any element of any of the charged offences that was inconsistent with any element of the appellant's acquittal for the Coles assault. The jury was not asked, and nor in context was the jury required, to determine whether the appellant had committed an offence against the criminal law in relation to the Coles assault.'

19 I have come to the same conclusion. I regard the following as relevant in this case:

• To the extent that the principle arises from the notion of double jeopardy it can have no application. The accused is charged with drug trafficking, not a family violence offence.

• That the accused had possession of firearms on 1 June 2012 is not an element of the crimes with which he is now charged. The jury will not be asked to come to a conclusion with respect to any element of the trafficking offences which is inconsistent with any element of the accused's acquittal of the family violence offence. It was submitted that possession of firearms is an element of the conduct of a business of selling drugs in the Giretti sense. I do not accept that submission. What must be proved is the ongoing and commercial sale of controlled drugs such as to amount to a business. Evidence of possession of firearms is circumstantial evidence of such a business, not an element of the charge.

• Evidence of the accused's possession of firearms is not to be adduced to prove that he was in fact guilty of the offence of which he was acquitted, but rather as circumstantial evidence of his guilt of the trafficking charges.

• The evidence relied on by the Crown as circumstantial evidence in the case against the accused for conducting the business of selling drugs does not require proof beyond reasonable doubt.

• There has been no judicial determination that the accused was not in possession of firearms on 1 June 2012.

• Tendering no evidence on the family violence offence did not necessarily involve acceptance by the prosecution that it could not prove beyond reasonable doubt that the accused was in possession of firearms on 1 June 2012.

• There was not, and could not have been, any question raised in the proceedings for a family violence offence, about whether the accused trafficked in drugs which is the issue in this trial.

• I regard it as unlikely that there will be any evidence in this case of the acquittal of the accused on the family violence charge, and so directions to the jury about the effect of the acquittal are not likely to be required.

20 The conclusion I have reached after consideration of all the authorities to which I have referred, is that evidence of the accused's possession of firearms is not inadmissible merely because it may support the inference, though not necessarily, that the accused was guilty of the offence of which he was acquitted. I am satisfied that no question of double jeopardy is raised. The evidence does not undermine or subvert the acquittal itself, and the accused is entitled to the full benefit of it in the sense that he can never be tried again for the offence to which it related, or an offence involving common elements. At its highest, and subject to the matters I have already referred to, the acquittal involves the proposition that the prosecution could not prove possession of the firearms beyond reasonable doubt, a question which does not arise in this trial. In any event, there is no manifest inconsistency. In the circumstances of this case the rule against double jeopardy does not prevent the Crown seeking to prove a different crime through circumstantial evidence which incidentally has the effect of calling into question a previous acquittal.

21 The objections made to the evidence by the accused are overruled."

1. Put simply, I agree entirely with the learned trial judge's reasoning and conclusion in relation to this issue.
2. The present case was, as his Honour obviously concluded, covered squarely by the decision of the Victorian Court of Appeal in Ulutui v The Queen [2014] VSCA 110, 41 VR 676 .
3. To adapt the words of the Victorian Court of Appeal in Ulutui, the jury was not required to come to any conclusion with respect to any element of any of the trafficking charges before it that was inconsistent with any element of the appellant's acquittal for the family violence offence, and the jury was not asked or required to determine whether the appellant had committed an offence against the criminal law in relation to the family violence offence.
4. The learned trial judge observed that quite clearly evidence of the appellant's possession of firearms was not adduced to prove that he was in fact guilty of the family violence offence of which he was acquitted, but rather it was adduced as circumstantial evidence of his guilt of the trafficking charges.

1. Were I to have concluded otherwise in respect of any or all of grounds 4, 5 and 6 of the notice of appeal, I would apply the proviso contained in s 402(2) of the Criminal Code. I would do so because, notwithstanding that the point raised by these grounds of appeal might be decided in favour of the appellant, I would take the view that having regard to the remainder of the evidence, in what was clearly a compelling circumstantial case, notwithstanding the reluctance of some witnesses to confirm at trial their earlier statements made to police, no substantial miscarriage of justice could be said to have occurred.

1. I would also dismiss the Director of Public Prosecutions' appeal against the adequacy of the learned trial judge's sentence.
2. To reach that conclusion I need to do no more than to refer to the written submissions made on behalf of the Director.
3. In the submissions the following observations were made by Mr Shapiro:

23 DPP v Williamson [2013] TASCCA 6 involved a plea of guilty to a 'commercial operation,' although the particulars related to a single day. He was in possession of a large amount of cash and a large number of capsules. The sentence was increased on appeal from two years imprisonment to four and a half years imprisonment.

24 In DPP v Williamson the learned Chief Justice summarised a number of previous sentences involving commercial trafficking of amphetamines, namely;

• Leicester (3 years and 4 months imprisonment, 12 months suspended).

25 Stebbins v Tasmania [2016] TASCCA 6 involved the most serious example of the crime of trafficking in Tasmania. This was reflected in the twelve and a half year sentence of imprisonment. The sentence imposed in Stebbins suggests that the upper end of the range for commercial trafficking operations in Tasmania is increasing.

26 In Stebbins v Tasmania Justice Estcourt summarised a number of sentences for commercial trafficking of amphetamines, namely;

• Oxford (3 years) ; Oxford v Tasmania [2006] TASSC 41

1. As can be seen, recent sentences imposed by judges of this Court in respect of the crime of trafficking in a controlled substance in a variety of different circumstances reflect a pattern of sentencing of substantially between 3 to 4½ years. I do not regard the facts and circumstances of the present case as compelling a sentence of more than 3 years, given the learned trial judge's very wide sentencing discretion.
2. Moreover, I would regard any relatively short increase in the length of his Honour's sentence within that range as "tinkering", given the nature of the present case. The learned trial judge was faced with a difficult task given that the jury did not need to be satisfied beyond reasonable doubt of each specific instance relied upon by the State, but had to be satisfied of the existence of a business within the period set out in the indictment. It followed from the verdicts that the jury was satisfied beyond reasonable doubt that for a period during the dates particularised in the indictment the appellant conducted a business by engaging in a continuous drug selling activity of a commercial and systematic kind. However, it was left to his Honour to make findings of fact for sentencing purposes. His Honour found as follows:

"Consistently with the verdicts, I would sentence the defendant on the basis of my satisfaction beyond reasonable doubt that, for the period between 2010 and early 2013, the defendant systematically sold amphetamine and methylamphetamine, including in its crystalline form, and cannabis, on a commercial basis from his property at Ronald Street. For six months in 2012 he trafficked in alprazolam."

1. As to the number and value of illicit sales made during that period, his Honour was only able to find that the appellant must, over a period of about three years, have sold drugs on at least hundreds of occasions, and that sales of "speed" and Ice were most likely in quantities for use, between a point and an eighth of an ounce.
2. In the context of those findings I am wholly unable to say that by imposing a sentence of three years' imprisonment with a non-parole period of 18 months, his Honour erred in some way such as to render the sentence unjust or plainly unreasonable by reason of inadequacy. See merely by way of example the very recent decision of this Court in Deakin v State of Tasmania [2016] TASCCA 19, where a sentence of 18 months' imprisonment was upheld in the case of the appellant's "persistent and brazen" course of conduct in importing 212.5 grams of methylamphetamine into the State and selling 142 grams of that amount for $60,000 over 8 months "with the potential that others in the community would suffer harm". In that case, at [34] Wood J, with whom Tennent and Pearce JJ agreed, said:

"As a drug trafficker, he either chose to ignore the prospect of harm, or put his own interests and profiteering ahead of that harm. Such conduct demands denunciation and a heavy penalty to deter others."

1. In the present case the learned trial judge was well aware that general deterrence is the most significant factor in cases involving commercial operations. He said, "deterrence, both of the defendant and others who may be minded to act in the same way, is a particularly important sentencing factor".
2. I regard the sentence as being reasonably open to his Honour who, as is well known, has a wide measure of latitude in sentencing. And, it is trite to point out that the relevant question is not what sentence I might have imposed had I been the sentencing judge.

DIRECTOR OF PUBLIC PROSECUTIONS v MARK RAYMOND ROLAND

1. I have had the benefit of reading the reasons for judgment of Estcourt J. I agree with everything that his Honour has written, with the exception that I would not express any view as to the applicability of the proviso in the hypothetical circumstance that there had been merit in any of the grounds of appeal against conviction. I would dismiss both appeals.