Samac v The Queen [2011] VSCA 171

1 On 23 June 2009, Tomislav Samac pleaded guilty in the County Court to a total five offences on two presentments (conveniently, 'presentment 1' and 'presentment 2'). On 6 November that year sentence was imposed. The offences and the sentences were as follows:

Traffic a large commercial quantity of MDMA between 11 August 2005 and 6 October 2005

Traffick methylamphetamine between 11 August 2005 and 6 October 2005

Traffic methylamphetamine between 6 December 2005 and 18 January 2006

Being a prohibited person, possess an unregistered firearm on 6 October 2005

Being a prohibited person, possess an unregistered firearm on 18 January 2006

2 The total effective sentence was thus 19 years' imprisonment.

4 His Honour stated, pursuant to s 6AAA of the Sentencing Act, that had the applicant been convicted after trial he would have imposed a total effective sentence of 23 years' imprisonment with a non-parole period of 18 years.

5 The applicant seeks leave to appeal against sentence. His counsel relied upon these grounds:

1. The learned sentencing judge erred in his assessment of the applicant's prospects for rehabilitation.
2. His Honour erred in failing to give sufficient weight to the principle of totality.

1. The individual sentences, total effective sentence and non-parole period are manifestly excessive.

One of the 'Mr Bigs' of the drug trade, having conducted a sophisticated, wholesale business in that insidious trade between August and October 2005 ... undeterred [after arrest, he] simply continued offending on bail.

7 Presentment 1, count 1 was a Giretti count involving three component parts. First, between 17 August and 13 September 2005 trafficking by sale or possession for sale about 48000 MDMA tablets, the mixture amounting to almost 12 kgs. Second, being in possession of 15338 MDMA tablets, weighing 4.66 kgs, on 6 October 2006. The percentage of the drug in the mixture was approximately 40 per cent. Third, having in his possession, at his home, on 6 October 2006, 12526 MDMA tablets weighing 3.55 kgs. The pure drug component varied between 20 and 40 per cent. These tablets were said to be the residue of a shipment brought from Sydney on 11 October 2005.

8 The total quantity of mixture containing MDMA was thus about 20 kgs. The threshold for a large commercial quantity, mixed, was 1 kg.

9 The maximum penalty for the offence was life imprisonment.

10 Count 2 involved 'relatively small scale methylamphetamine trafficking simpliciter', undertaken between 11 August and 6 October 2005, in an amount of 78.5 grams. The upper threshold for trafficking simpliciter was 100 grams. The trafficking consisted, at least substantially, of the applicant using the drug and giving some of it to associates who used it with him in a social setting.

11 The maximum penalty for the offence was 15 years' imprisonment.

12 Count 3 was a Giretti count of trafficking methylamphetamine by manufacture in the period between 6 December 2005 and 18 January 2006. The applicant's role involved assisting another offender, Waters, to procure precursor substances. It also involved him taking some part in manufacturing small amounts of methylamphetamine, and in setting up a clandestine laboratory (complete with a pill press) at a premises which he owned. At those premises, police found a dish in which there was 17.5 grams of a substance which contained methylamphetamine. Further, when the applicant was arrested on 18 January 2006, 23.3 grams a mixture containing a high percentage of the drug was found in his motor vehicle.

13 The maximum penalty for this offence, committed whilst the applicant was on bail, was 15 years' imprisonment.

14 When police searched the applicant's second premises on 6 October 2005 they found an unregistered .22 calibre rifle. The applicant was a prohibited person under the Firearms Act 1996 at the time. These were the circumstances of what became count 1 on presentment 2. The maximum penalty for the offence was 15 years' imprisonment.

15 On 18 January 2006, when police searched the applicant's home, they found what the judge described as a 'fearsome and unusual weapon' - an unregistered 9mm semi-automatic pistol. The serial number of the weapon had been ground off. Police also found a detached magazine containing 36 cartridges, and 14 spare cartridges.

16 The muzzle of the weapon was threaded to take a silencer; but no silencer was found in the applicant's possession; and there was nothing to suggest that he had ever attempted to obtain one.

17 There was evidence that the gun was a rarity, and only able to be legally sold to an approved organisation.

18 The judge described the weapon as an 'automatic' pistol in his sentencing remarks. That coincided with the prosecutor's initial description of it. But later the prosecutor, for reasons which he explained, re-characterised it as a semi-automatic weapon. It could discharge only one shot per trigger pull.

19 The applicant's possession of this weapon was the subject-matter of count 2 on presentment 2. The maximum penalty for this offence was 15 years' imprisonment.

20 The applicant was aged 34 at time of offending, and 38 at sentence.

21 Born in Croatia, but brought up in Macedonia mainly by his mother, the applicant went to school, the judge found, only to year 8.[1] He was not a good student.

22 Aged 19, the applicant was drafted into the Croatian army. He served for eight months, then deserted, fleeing to Hungary, and eventually ending up in a camp in Germany. He claimed to have been exposed to 'traumatic wartime horrors'. The judge apparently accepted that this was the fact.

23 Aged 21, the applicant migrated to Australia with his mother and sister.

24 He married in 1994. There were two children of the marriage. At time of offending, it was under difficulties, but subsisting. At time of sentence, it seems to have existed in name only.

25 The applicant had no skills or training when he migrated to Australia. He found work as a security guard in hotels and nightclubs. He was exposed to drugs, began to take them, and became addicted to heroin.

26 The applicant acquired a criminal history. He was convicted of trafficking heroin in September 1996, February 1997 and September 1997. On each occasion, he was sentenced to a term of imprisonment. The sentences imposed on the first two occasions were suspended - in the one case partly, in the other instance wholly. But the applicant breached the first order, and had to serve the period held in suspense. The third sentence was substantial - four years' imprisonment with a two years and six months' non-parole period.

27 The applicant's criminal history contained one other offence of potential relevance - that of being a felon in possession of a pistol. The conviction was acquired in July 1998, apparently in respect of an offence committed in 1996. Apparently, the weapon was found at a search of his home, the search probably being related to drugs offending at the time. The weapon was said on the plea to have been, in fact, a .22 calibre rifle which the applicant used for hunting. The judge was mistaken in stating in his sentencing remarks that 'it was not explained why you needed to have such a weapon'. In any event, the magistrate imposed a sentence of three months' imprisonment, to be served concurrently with the sentence imposed for the third drug-trafficking conviction.

28 The applicant was released in late 1999. He was on parole for 18 months, and there was no material to suggest that he offended in that period.

29 The applicant got back to work. But he suffered a back injury and went onto accident compensation payments. Precisely when he suffered the injury is not clear. The judge said in his sentencing remarks that it was in 2002 or 2003. Having regard to the provisions of the Accident Compensation Act 1985, the injury must have been of some considerable severity if, as his counsel asserted, WorkCover payments were made until mid 2005.

30 The judge accepted that, following the applicant's workplace injury, he became 'highly dependent on methamphetamine or ice'. His drug addiction 'spiralled out of control'. No doubt, the judge said, this 'masked some of the horrors of (the applicant's) war experiences in Croatia'.

31 In this Court, applicant's counsel submitted that the applicant's return to drug use following his release from prison was in part a response to his painful spinal injury. But that was not the way that the matter was put below. Counsel rather submitted that unemployment, WorkCover, being miserable, and feeling pretty worthless combined to result in his client's relapse into drug use.

32 There was some material before the judge which addressed the applicant's mental state. Reliant upon a Forensicare report, his Honour did not accept that the applicant suffered from a psychotic disorder. That had been a possible diagnosis mentioned by Mr McKinnon. But the judge did conclude that the applicant suffered from 'an anxiety/post-traumatic stress disorder which arises from [his] troubled childhood, the trauma of [his] wartime experiences and possibly the long-term abuse of drugs'.

33 It was not contended on the plea that the applicant's mental state had a nexus with his offending. It was, however, argued that it would bear upon the burden of imprisonment. The judge rejected that argument, concluding that there was no evidence that any sentence which he imposed would weigh more heavily on the applicant than it would upon a person in normal mental health.

34 When the applicant was re-arrested, in January 2006, he went into custody. There he remained until sentenced in November 2009, on any view a very long period. In the period between April 2006 and March 2009 he underwent 14 urine and breath screens. All were clear. This gave support for the applicant's assertion that he had been drug-free over that three years and nine month period.

35 I have referred, in passing, to a number of conclusions which the judge expressed in his lengthy sentencing remarks. But it is necessary to refer to some other aspects of what his Honour said.

36 First, the judge gave the applicant credit for his pleas of guilty. They had been first indicated, as to most offences, in September 2008. That was after a committal hearing which had proceeded by straight hand-up brief. The applicant had reserved his plea. At that stage he had been facing 36 charges.

37 His Honour stated that he could not discern any remorse in the pleas, but that they had a substantial utilitarian value, for which reason 'there should be a significant reduction in sentence'.

38 Pausing, in this Court counsel for the applicant focussed upon a submission that the judge had given insufficient credit for his client's guilty plea. But counsel did not submit that the judge had erred by failing to recognise that the plea conveyed remorse - at least to the extent of acceptance of guilt.

39 Second, the judge gave the applicant credit for facilitating the laying of the firearms charges particularised by P2 'when it became clear that the prosecution had made a significant error in failing to initially lay those charges'.

40 Something should be said about this matter. The applicant was arraigned on two counts of possessing unregistered weapons. He pleaded guilty. The maximum penalty for those offences appears to have been in the one case two years' imprisonment, and in the other case seven years' imprisonment. But the judge raised the question whether the applicant had been a 'prohibited person' at the time. This led to the prosecutor eventually agreeing that an error had been made, that it was 'solely an error on the part of the Crown', and to the filing of presentment 2. The applicant did not oppose the course taken, and he pleaded guilty to the offences on that presentment. The conclusion is scarcely avoidable that he and his legal advisers considered that opposition to the filing of the new presentment would likely be fruitless, the judge having initiated the enquiry which led to the new charges. In the event, the applicant was exposed to maximum penalties which were much greater than those which he had faced when first arraigned. The matters which I have mentioned stand distinct from the circumstance that the facts supported the new charges.

41 Third, the judge took into account, favourably for the applicant, the fact that the matter had been 'hanging over [the applicant's] head awaiting resolution for a considerable time.' None of the delay, the judge said, was of the applicant's making.

42 The judge said nothing, in the context of delay, about any step which, applicant's counsel had submitted, his client had taken towards rehabilitation in the period of delay.

43 Fourth, the judge referred to two statements made by this Court, a decade apart, about the scourge of drug trafficking, and of the need for application of principles of 'denunciation, protection of the community, just punishment, general deterrence, and sometimes specific deterrence' - which, his Honour said, in serious cases 'require the imposition of sentences of substantial length'.

1. Regrettably, over many years now there has been a continual and alarming increase in the incidence of drug trafficking and the attendant quantities of drugs of dependence, which are trafficked in our society. This has often been associated with an apparent arrogance on the part of offenders as to the prospects of detection and a frightening disregard for the sentences handed down and the denunciation of the courts. Such are the profits to be made in this insidious business. Such are the risks which offenders like you are prepared to take. Many in our community question the disturbing nature of this spiralling phenomena and ask whether there are not better ways to deal with the problem, particularly for those sad persons addicted to drugs and the debilitating and dysfunctional lifestyle which accompanies their addiction. However, those like you, who are the 'Mr Bigs' operating at the top of the tree in sophisticated trafficking schemes designed to make massive profits, must know that if they are tempted to act in this way, the courts will impose severe punishment upon them.

45 The judge's reference to the statements made by this Court, and the paragraph from his sentencing remarks just cited, replicated word for word what his Honour said in passing sentence on two other offenders[2] involved in the trafficking in which the applicant participated - trafficking that was investigated by the police under the code-name 'Jedi'. In an application for leave to appeal against sentence brought by one of the others, Boris Trajkovski, heard immediately before this matter, the cited passage was attacked on several bases. For the reasons given by Weinberg JA in that matter,[3] I consider that the attack was made good.

1. It is clear, as your counsel stated, that on count 1 you engaged in spectacular high-end offending, none of which was inhibited by any drug addiction you had and which, obviously, went way beyond what you needed to feed your own habit. Over a prolonged period of almost eight weeks, you trafficked a vast amount of MDMA - twenty times higher than the large commercial quantity. This involved huge amounts of money, interstate trips and purchases, and an intimate knowledge of what was going on at the highest illicit drug levels in Victoria and elsewhere.
2. It is often said that the courts do not have significant principals in the drug trade before them, only the 'little fish' whose lives are often destroyed by the end product they are dealing with. But that is not the case where you have proven to be high-end offender on count 1. Without doubt, you were big fish out to make a big profit and your offending on that count constitutes a very serious example of the offence in question.

1. ... you were a manipulative, conniving and strategic offender. It was clear that drug trafficking had become a natural part of your life, as natural as discussing the fortunes of your family or friends, shopping expeditions, or the weather. This was a chilling aspect of the incriminating transcripts.

1. ... Yours is not a case of a person who trafficks drugs so as to support their drug addiction, rather than to obtain any other profit. To adopt the words of one judge, you trafficked in drugs '... for reasons of greed and in callous disregard of the grave harm that the offence does to its victims.' You knew exactly what you were doing, particularly that the drugs you were selling would eventually be on-sold to consumers and addicts at a street level. To the extent you understood

their disabilities because of you own drug use, so much the worse is your offending.[4]

48 The last sentence in this passage was a formula which the judge employed in his sentencing remarks concerning other 'Jedi' offenders. It is a formula which was considered inapt in Beckerton v The Queen.[5] Further, in the present case, as in Nguyen v The Queen; Phommalysack v The Queen,[6] the Crown did not submit on the plea that the applicant's moral culpability was the greater because, as a drug addict, he understood the disabilities of drug users.

49 Eighth, concerning the offence of possessing the .22 calibre rifle, the judge said this:

1. The .22-calibre rifle found on 6 October 2005 was said by your counsel to have been possessed for unspecified and unexplained 'hunting' purposes. The prosecution correctly submitted that the .22 rifle is consistent with a type relatively common within the community that is used for hunting. But that is of little moment in these circumstances. There is no suggestion in the telephone intercepts that you were any kind of hunter (other than for purchasers of your drugs) and, in any case, you were a prohibited person and not able to get a licence to possess any weapon, even if you wanted to go hunting.

50 It is not entirely clear whether his Honour accepted or rejected the explanation which applicant's counsel advanced why the applicant possessed the rifle. Perhaps, inferentially, he rejected it. If that is what he did, I cannot understand what basis there was for doing so. The prosecutor had submitted that 'there are no aggravating aspects to possession of this weapon per se'. Further, it was utterly unsurprising that the applicant said nothing about hunting in drug-related conversations. Again, in the absence of any query being raised by the judge or the prosecutor, I do not understand why the 'hunting purposes' should have been either specified or explained. Finally, his Honour's play on words - encapsulated in the bracketed part of the cited paragraph - revealed an evident distaste for the applicant. But it did nothing to grapple with the submission made by his counsel.

51 In all, if the judge did reject the submission - which he did not do overtly - I consider that the rejection was not open. Beyond that, it can at least be said that the judge did not make, in respect of the rifle, a finding of the kind which he made in respect of the handgun.

52 Ninth, his Honour concluded that the applicant had armed himself with a second firearm, 'at considerable cost, in connection with [his] drug business;' and that the only conclusion he could reach was that the applicant 'did so so [he] could use it, if need be'. This conclusion was founded upon the explanation offered by applicant's counsel that his client had obtained the weapon because he was 'frightened of drug traffickers to whom [he] owed substantial money concerning the initial drug seizures on 6 October 2005'.

1. Unregistered handguns such as that in count SP2 are the weapons of choice of firearms' traffickers and instil fear and concern in our community, particularly in light of a number of notorious and widely publicised shootings in recent years. The trade and use of unregistered firearms of this kind is a serious threat to the stability and welfare of our society and it cannot hope to attack the black market in unregistered firearms, particularly when possessed by prohibited persons, without the courts imposing serious penalties for offences of your kind.[7]

1. One of the obvious purposes of such control is to avoid offenders like you from inappropriately obtaining access to such a weapon. Your possession of the firearm was made worse by the fact that it was freely obtainable in your laundry. It could have been accessed by anyone entering or breaking into your home.
2. Your possession of the firearm on count SP2 constitutes a serious example of this serious offence, given the nature of the weapon; that it was obtained in relation to your drug business whilst you were on bail for exactly the same offence; and that you had a prior conviction for a gun offence.

54 Later, it will be necessary to say something about aspects of the passages just cited.

55 Tenth, the judge drew attention to the fact that count 3 on presentment 1 and count 2 on presentment 2 involved offences committed whilst the applicant was on bail. This bore upon prospects of rehabilitation, and constituted an aggravating factor. Whilst his Honour concluded that full cumulation was not required,[8] he rejected the Crown's submission that on those counts there should be an effective 12 months' cumulation. Instead, he directed that the cumulation, in substance, be three years.

88. ... in your case, notwithstanding that these convictions occurred some time ago, the combined effect of -

• your lenient treatment of suspended sentences on two of those trafficking prior convictions and the concurrent sentence on the prior weapons matter;

• your admitted continuing drug usage up to and at the time of offending;

• the period of time over which you offended;

• the different drug businesses and substances concerned;

• the high level trafficking for profit involved;

• the energetic nature of your commitment to the task;

• the fact that your offending only came to a halt because police arrested you; and

• your commission of offences whilst on bail

- means you have a greater moral culpability, low prospects of rehabilitation,

and a dangerous propensity.

57 Twelfth, submissions were made on the plea as to the appropriate sentencing range. I should set out all that his Honour said, including his conclusions, in that connection:

1. The prosecution made submissions as to sentencing range. It relied upon Sentencing Snapshots for trafficking in a large commercial quantity of drugs and trafficking simpliciter and upon a number of relevant cases set out in its lengthy written submission. So too did your counsel who presented a very well prepared and argued plea.
2. The sentencing statistics showed that between 2002/03 to 2006/07, the range of sentences for trafficking in a large commercial quantity of drugs was from 3 to 16 years' imprisonment, with a median length of only 6 years.
3. The prosecution submitted that there should be a sentence range of 22 to 24 years' imprisonment imposed on count 1, with a total effective sentence range of 23½ to 25½ years' imprisonment, with a minimum of 20½ to 21½ years. Such minimums are disproportionately high at 87% to 84% of the respective maximums. No explanation has been given as to why that should be so. I do not consider there is any justification for adopting such an approach.
4. Your counsel submitted that the range on count 1 should be closer to that imposed in R v Ahmed where a sentence of 14 years' imprisonment was imposed on appeal for the single offence of trafficking in a large commercial quantity of MDMA, namely 14.3 kg of powder and tablets, upon a sophisticated trafficker with bad prior convictions for drugs and who pleaded guilty. With another offence of trafficking in a commercial quantity of MDMA, a total effective sentence of 17 years' imprisonment with a minimum of 13 years was imposed.
5. In three recent cases concerning three different offences for which the maximum penalty was 25 years' imprisonment, the Court of Appeal has examined current sentencing practices and concluded the range of sentences being imposed did not appear to reflect the very high maximums which Parliament had fixed. Not surprisingly, this was said to be a matter of the first importance to the administration of criminal justice in this State.
6. Of course, I must not disregard the will of Parliament as expressed in the fixing of the maximum penalty. Although there must be a balanced consideration of all other relevant factors, a consideration of the maximum penalty invites a comparison between the worst possible case and that before the court. The maximum sentence of life imprisonment for count 1 provides a guide or yardstick as to the seriousness with which the particular offence should be viewed.
7. However, both sides were agreed that there should not be imposed a sentence unconstrained by current sentencing practices, and more responsive to the maximum penalty, because you pleaded guilty and your pleas are likely to have been entered on the reasonable assumption that you would be sentenced in accordance with current sentencing practices. I agree with this approach. Having reached that view, I should nevertheless note that the Court of Appeal has made clear that it would be appropriate to impose a sentence which is higher than current sentencing practices, where the maximum penalty or other considerations indicate such a course is appropriate. But I have not done that in your case.
8. As is often said, whilst sentencing statistics and other cases may provide helpful guidance, particularly as to principle, every case must turn on its own facts and circumstances. The prosecution did not explain the basis for its submission that 22-24 years' imprisonment was an appropriate range for count 1, based on current sentencing practices. This figure is a very significant increase on the 14 years imposed in Ahmed and, it would seem to me, more responsive to the maximum sentence than current sentencing practices. However, I do consider the sentence should be greater than that imposed in Ahmed because you trafficked in a much larger quantity and did so over a greater period of time than occurred in that case.[9]

58 Thirteenth, the judge concluded that there should be some cumulation of all sentences on the base sentence. He said also that regard must be had to totality, proportionality, and the need to avoid a crushing sentence. He stated that he had 'done all that.'

59 Applicant's counsel submitted that the gist of the matter was manifest excess. He advanced these contentions:

(a) The judge had failed to give adequate regard to the applicant's guilty plea (I note that the significance of the plea was much relied upon below).

(b) His Honour had erred in characterising the applicant's prospects of rehabilitation as low. He had failed to allow for demonstrated rehabilitation in the period of delay.

(c) The directions for cumulation which his Honour made exceeded the Crown's submission as to what was appropriate. In particular, the cumulation which the judge directed in respect of a heavy sentence on the second firearms count was greatly excessive. It was no answer to say that the Crown had made submissions as to individual sentences and total effective sentence which the judge did not accept. The issues were distinct.

(d) The sentence on count 1 on presentment 1 was manifestly excessive. The range contended for the Crown had been quite inappropriate. Applicant's counsel on the plea had referred to R v Ahmed,[10] and to some extent had called it in aid; but Ahmed was not an apt comparator.

(e) The applicant's drug usage, which lay behind his offending, had resumed following his back injury. There was a link between these events (the argument, in effect, was that the applicant had taken drugs to alleviate pain or the incapacitating consequences of his compensable injury).

(f) The applicant's back injury was chronic, and was such as to make the burden of imprisonment greater than it would otherwise be. But, counsel conceded there was no material before the judge which frankly so asserted.

60 The main submissions for the Crown were as follows:

(a) The judge had not erred in finding that the applicant's prospects of rehabilitation were low. His Honour had identified matters favouring that conclusion. That was so even though the absence of rehabilitation before offending ended did not stand as an adverse consideration; and although his Honour had said nothing about evidence of rehabilitation during the period of delay.

(b) None of the individual sentences or directions for cumulation were manifestly excessive. The offence constituted by count 1 on presentment 1 was very serious. It involved trafficking about 20 times the threshold large commercial quantity. The submissions as to range which the Crown had advanced had not been, counsel conceded, responsible. But the judge had not accepted them.

(c) The judge had not been bound by the Crown's submissions with respect to cumulation. Those submissions had been made in the context of a contention that the appropriate head sentence was in the range 23 ½ to 25 ½ years.

(d) The judge had referred to all relevant considerations in his sentencing remarks. He had accorded them appropriate weight. It could not be said of any individual sentence, or direction for cumulation, that it was impermissibly great.

61 Although, as I have said, the submissions for the applicant focussed upon the manifest excess and totality grounds, a number of quite distinct problems emerge from a reading of the sentencing remarks. Individually and collectively, they bear upon the grounds which were pursued.

62 First, with respect to prospects of rehabilitation - a matter which was discretely addressed by applicant's counsel - the judge identified as an adverse circumstance the fact that the applicant admitted to continuing drug usage 'up to and at the time of the offending'. This implied that the applicant's failure to rehabilitate himself before his offending ended was an adverse consideration. But rehabilitation is, at least ordinarily, something which postdates offending; and in that connection the judge said nothing about the applicant having apparently been drug-free for considerably more than three years at time of sentence. His Honour's observation that this last circumstance was very much in the applicant's favour was unattached to prospect of rehabilitation.

63 The applicant's drug use was a significant matter. It seems to have been a circumstance common to all of his drug-related offending. If the judge had any confidence in the applicant having been drug-free for a considerable number of years post-offending - and apparently he did - it must surely have been relevant to prospect of rehabilitation. So, as I see it, his Honour's sentencing remarks contain an internal conflict with respect to that prospect. To my way of thinking, it was not resolved by the Crown's submission that other considerations told in favour of the judge's finding of low prospects of rehabilitation. For those considerations were connected with offending which had as a common underlying circumstance the applicant's drug abuse.

64 Also pertinent to prospect of rehabilitation was the fact that the applicant had previously completed a parole period without incident.

65 In the event, I consider that the finding that the applicant's prospect of rehabilitation was low was simply not supportable. The prospect could at worst have been described as 'guarded', or 'uncertain' - in that it must have depended on the applicant continuing to desist from drug use. I accept that this could not be predicted with certainty. Indeed, the suggestion in this Court that the applicant's resumed drug usage was in part a response to his back injury could be said to tell against the prospect of the applicant staying drug-free. But no submission was put on the plea that the two were causally related, and we were not referred to any material which would make out the assertion.

66 Second, it is related to the matter just mentioned, the judge said nothing about demonstrated rehabilitation in the period of delay.

67 Third, the judge's statement that 'over many years now there has been a continual and alarming increase in the incidence of drug-trafficking' implied that the offence had become more prevalent in a time-frame which included the recent past. That was not a submission made by the Crown on the plea, no material to support such a conclusion was advanced, and the applicant was given no notice by the judge that such a conclusion might be reached. Concerning this statement, I refer again to the reasons of Weinberg JA in Trajkovski.[11]

68 Fourth, the judge's observation that, to the extent that the applicant was a drug-user, he understood the disabilities of drug users and 'so much the worse [was his] offending', was in my view erroneous in the circumstances of the case. This was not the 'admittedly unusual case' mentioned by Weinberg JA at [44] in Beckerton v The Queen.[12]

69 Fifth, I made observations at [50]-[51] above with respect to the offence constituted by the applicant's possession of the .22 rifle. Notwithstanding the fact that the applicant was a prohibited person, analysis of the circumstances shows that the offence was low in the order of seriousness, this bearing both upon the sentence imposed and the question of cumulation. I also consider that the unusual circumstances in which the applicant came to be exposed to the particular offence, discussed at [40] above, should not be ignored.

70 Sixth, with respect to the handgun offence, the conduct to be punished was the applicant's possession, as a prohibited person, of an unregistered weapon of the particular type. It was surely enough to say that for a prohibited person to possess such a weapon in the admitted circumstances made the offence a serious one.

71 It appears to me to have been beside the point whether or not, as the judge asserted, such unregistered weapons 'are the weapons of choice of firearms traffickers'. The Crown had adduced no material, nor made any submission to that effect, which might at least have provided a forum for consideration whether the circumstance could be relevant. Presumably, however, his Honour considered the asserted circumstance relevant to sentencing the applicant - that is, because it made his offence the worse.

72 In respect of this offence also, there were the unusual circumstances to which I have referred at [40] above.

73 Seventh, I agree with the concession made by senior counsel for the Crown before us that the prosecution's submissions below as to the appropriate range of sentences on presentment 1, count 1, and with respect to total effective sentence, were irresponsible. The Crown did not contend that the judge should abandon the principle of consistency in sentencing because of some perceived inadequacy of sentences across the board. Yet the prosecutor advanced a range which bore no relationship to sentences previously passed on a count of trafficking a large commercial quantity of a drug.

74 Fortunately, the judge was not distracted by the Crown's submission. Unfortunately, however, the situation was not advanced when applicant's counsel referred to, and sought some comfort from, the decision in R v Ahmed.[13]

75 The comfort sought was limited enough. The judge had observed to the prosecutor that Ahmed was the highest sentence to which the Crown had drawn his attention. There, a total effective sentence of 23 years' imprisonment with a non-parole period of 17 years had been reduced on appeal to a total effective sentence of 17 years' imprisonment with a non-parole period of 13 years. There had been double punishment. Within the overall sentence was a sentence on a large commercial quantity count of 14 years' imprisonment - reduced from a 16 years' sentence at first instance.

76 Against that background, counsel for the applicant submitted simply that Ahmed 'will probably be the closest factual scenario that will be aligned to this case'. That led his Honour to compare the circumstances of Ahmed and the instant case, and to conclude that the sentence should be greater in the applicant's case because 'he trafficked in a much larger quantity and did so over a greater period of time than occurred in that case'.

77 Subsequent to his Honour sentencing the applicant, this Court said in Hudson v The Queen; DPP v Hudson[14] that only a quite limited use can be made of so-called 'like cases'.[15] The principle applies a fortiori where only one 'like case' is identified.

78 The judge in the present case, of course, cannot be criticised for not anticipating Hudson.

79 In light of what I have just said, it would be anomalous to closely analyse the circumstances in Ahmed. I do note, however, three matters: (1) the total effective sentence imposed by this Court in that case was the highest imposed in the period 2002-03 to 2006-07 for offences which included trafficking in a large commercial quantity of an illicit drug;[16] (2) a Sentencing Snapshot for the period 2004-05 to 2008-09,[17] not available to the judge, shows that the highest total effective sentence imposed for offences including trafficking in a large commercial quantity was 16 years' imprisonment, and that there were four instances of sentences for trafficking a large commercial quantity of a drug of between 13 and 14 years' imprisonment;[18] and (3) sentences of between 10 and 13 years imprisonment have been imposed (or sustained on appeal) for trafficking a large commercial quantity of a drug in the period 2008-2011.

80 The problems - indeed, errors - to which I have referred would not necessarily mean, even if they had been relied upon as specific errors by the applicant - that the application should be granted and the appeal allowed. There is always the question whether this Court thinks that a different sentence should have been passed. Here, the position is complicated by the fact that only the judge's finding as to prospect of rehabilitation was challenged for specific error. Subject to the impact of that error, I consider that the matter must be viewed through the prism of manifest excess. In the necessary examination, however, the various errors may be relevant as suggesting, or explaining, why a particular sentence, or direction for cumulation, was manifestly excessive.

81 The sentence imposed on presentment, count 1, was very severe having regard to the pattern of sentencing for the particular offence.[19] It appears to be the highest sentence imposed (or which has withstood appeal) for the offence. This was undoubtedly a very bad instance of the offence, committed by an offender whose antecedents were unfavourable. On the other hand, for reasons which I have explained, I do consider that his Honour erred in his finding that the applicant's prospect of rehabilitation was low - albeit that the prospect might be characterised as 'guarded' or 'uncertain'. Allowing also that the plea of guilty had to be accorded real, not simply token, weight, I am persuaded that the sentence was impermissibly high. I consider that a sentence of 13 years and six months' imprisonment should be imposed on that count.

82 In my opinion, in all the circumstances, the applicant has not established manifest excess in respect of any of the other individual sentences. That is so despite criticisms which I have made with respect to the judge's treatment of the firearms offences.

83 The question of cumulation is another matter. Totality, and the need to avoid a crushing sentence, need to be considered.

84 Count 1 on presentment 2, the first firearms offence, for reasons which I have explained, was of a low order of seriousness. There was separate criminality in the offending, and some cumulation was justified. But cumulation of half the sentence imposed, in my view, much exceeded what was permissible.

85 Notwithstanding the introduction of what I consider was an irrelevant consideration by the judge, the second firearms offence was undoubtedly serious. Because it was committed whilst the applicant was on bail, there was a presumption of cumulation. That was not to be set at nought because of totality considerations. Nonetheless, neither totality nor the need to avoid imposition of a crushing penalty were irrelevant. That was reflected by the submissions for the Crown below - albeit made in the context of a submission as to sentencing range on presentment 1, count 1, which was far too high.[20] I consider that the cumulation directed by his Honour on presentment 2, count 2, was much too great.

86 On the other hand, I consider that the extent of cumulation directed on presentment 1, count 3, a matter also addressed by the Crown's submission below, was within range;[21] likewise the extent of cumulation of the sentence imposed on presentment 1, count 2.

87 In all, I consider that the directions for cumulation in respect of counts 1 and 2 on presentment 2 were manifestly excessive. I would substitute orders which had the effect of cumulating three months and one year respectively. That would yield a total effective sentence of 16 years and three months' imprisonment. I would fix a non-parole period of 12 years and six months' imprisonment.

88 Section 6AAA of the Sentencing Act 1991 requires a court to state the total effective sentence and the non-parole period 'that it would have imposed but for the plea of guilty'; and to record, or cause to be recorded, inter alia, the individual sentences that it would have imposed. To other valid criticisms which have been made of the section,[22] I add this: the section does not say what facts are to be assumed for the purposes of the exercise. Viewed from the standpoint of the sentencing judge, I assume that the facts are to be those - both with respect to the offence and the offender - which the judge accepts, or finds, for the purpose of imposing sentence. But those sentencing facts cannot sensibly be presumed to coincide with the evidence led at the hypothetical trial which resulted in the presumed guilty verdict. Who can say just what evidence concerning the offence would have been given by witnesses - including, perhaps, the accused - had the matter gone to trial? What assurance can there be that evidence relating to some sentencing fact or facts concerning the offence might not have been excluded at the

hypothetical trial? Further, a judge sentencing on a plea of guilty can have no idea about the manner in which the hypothetical trial might have been conducted; and how that might have been relevant to sentence.

89 In the present case, there is an additional complication. Assuming that this Court, when re-sentencing an offender, is a court for the purposes of s 6AAA,[23] in practice it makes no comprehensive findings as to sentencing facts. Rather, it acts upon the judge's sentencing facts except to the extent to which the same have been successfully impugned on the appeal.[24] For the reasons discussed at [62]-[79] above, certain conclusions upon which the judge acted in sentencing the applicant were erroneous. In those circumstances, a s6AAA statement by this Court cannot simply rely on the sentencing facts found by the judge. All I am able to say is this: if the evidence concerning the offences in the presumed trial had entirely coincided with the prosecut[25]n opening on the plea,25 and if the facts concerning the offender had been as the judge found them to be, then in the event of conviction on all counts I would have imposed a total effective sentence of 19 years and six months' imprisonment; and I would have fixed a non-parole period of 15 years' imprisonment.

91 I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I also agree with them.

[1] This conclusion was based upon a history recorded in a Forensicare report. It conflicted with the history given to Mr McKinnon, a psychologist whose report was relied upon by the applicant. There it was noted that the applicant had completed year 12. That evidently coincided with the instructions upon which applicant's counsel advanced the plea.

[2] Boris Trajkovski and John Waters, sentenced on 30 October 2009.

[3] Trajkovski v The Queen [2011] VSCA 170, [100]-[104].

[5] [2011] VSCA 107, [41]-[45].

[6] [2011] VSCA 32.

[8] See s 16(1A)(e) and (3C), Sentencing Act 1991.

[10] [2007] VSCA 270; (2007) 17 VR 454.

[11] Trajkovski v The Queen [2011] VSCA 170 (see note 3).

[12] [2011] VSCA 107.

[13] [2007] VSCA 270; (2007) 17 VR 454.

[14] [2010] VSCA 332.

[16] Sentencing Snapshot 46, to which the judge referred in his sentencing remarks.

[18] I have omitted Ahmed from the statistics, because they deal only with the first instance sentence.

[19] In which I include Rizzo v The Queen [2011] VSCA 146.

[20] That is, on the footing on which the plea proceeded.

[21] This offence was also committed whilst the applicant was on bail; and so the presumption of cumulation applied. But the offence was not a 'relevant offence' under Part 2A of the Sentencing Act 1991, and so neither s 6D nor s 6E of that Act applied.

[22] R v Flaherty (No. 2) [2008] VSC 270; (2008) 19 VR 305.

[23] This has been an assumption upon which the Court has acted for some years now.

[24] Of course, where the appeal succeeds on the ground of manifest excess only, no sentencing fact will have been impugned.

[25] Including concessions made by the prosecutor.