Scerri v The Queen [2010] VSCA 287

Court of Appeal (Vic)|2010-10-28|Before: MAXWELL P and BUCHANAN JA

[2010] VSCA 287 First Revision: 2 March 2012, [56]

R v Scerri (Unreported, County Court of Victoria, Judge Lacava, 12 November 2008)

CRIMINAL LAW - Appeal - Sentence - Appellant pleaded guilty to State offence and Commonwealth offence - Trafficking in large commercial quantity of drug of dependence (State) - Importing commercial quantity of ingredient for drug manufacture (Cth) - Total effective sentence 11 years, non-parole period 8 years - Whether sentence accorded with judge's stated intention - Co-operation with authorities - Factors relevant to discount for co-operation - Parity - Co-offender given lenient sentence - Considerations of equal treatment paramount - Re-sentenced - (Vic) ; (Cth) s 307.11(1).

CRIMINAL LAW - Appeal - Sentence - Guilty plea - Statutory requirement for sentencing judge to state sentence which would have been imposed if offender had pleaded not guilty - Whether requirement applicable to sentencing for Commonwealth offences - Whether stated discount for plea of guilty can give rise to separate ground of appeal - Sentencing Act 1991 (Vic) s 6AAA.

1 The appellant was arraigned in the County Court and pleaded guilty to a presentment containing a count of trafficking in not less than a large commercial quantity of methylamphetamine, contrary to the provisions of s 71 of the Victorian Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the 'State offence'), and to an indictment charging that the appellant imported a commercial quantity of phenylacetic acid believing that another person intended to use that substance to manufacture a controlled drug, contrary to the provisions of s 307.11(1) of the Criminal Code Act 1995 (Cth) (the 'Commonwealth offence').

2 After a plea, the appellant was sentenced to be imprisoned - on the State offence - for a term of eight years with a minimum term of six years before he was to be eligible for parole and - on the Commonwealth offence - for a term of five years with a non-parole period of two years. The sentencing judge directed that the sentence imposed on the Commonwealth offence was to commence upon the expiration of the non-parole period of the State sentence, producing a total effective sentence of 11 years' imprisonment, with a minimum term of eight years' imprisonment.

3 The appellant has been granted leave to appeal against the sentence by a single judge of this Court.

4 The appellant was the proprietor of a company which manufactured cleaning products such as soaps, disinfectants and detergents. One GH worked in the same industry and was known to the appellant. A third person, George Peters, manufactured methylamphetamine for members of the Mokbel family.

5 GH met Peters in 2005 and commenced to supply Peters with chemicals to enable Peters to manufacture drugs of dependence. In turn GH obtained the chemicals which he supplied to Peters from the appellant in the period from March 2006 to April 2006. The appellant knew that the chemicals which he supplied to GH were to be used to manufacture methylamphetamine. The appellant supplied large quantities of chemicals to GH in return for substantial payments.

6 On 22 April 2006, Peters was arrested by the police. He then owed a substantial amount of money to GH, who in turn owed money to the appellant for chemicals which had been supplied to GH and Peters.

7 Horty Mokbel, a drug trafficker, contacted GH and said that if he wanted to recover the money owed to him, he could do so by supplying chemicals to Mokbel. GH fell in with this arrangement and obtained the chemicals he required from the appellant. He continued to do so until his arrest on 5 April 2007. Mokbel used the chemicals supplied to him to produce methylamphetamine. The quantities of chemicals and the sums of money paid for the chemicals were substantial. Over the period covered by the presentment, the chemicals included 430 kilograms of phenylacetic acid, of which 280 kilograms went to GH and Mokbel, 1,244 kilograms of acetic anhydride, 385 kilograms of diethylamine, 780 kilograms of dimethylamine and 250 kilograms of sodium acetate.

8 Phenylacetic acid is an essential chemical used in the production of methylamphetamine. The chemical is difficult to acquire legitimately. The appellant imported 200 kilograms of phenylacetic acid from India. This shipment was the subject matter of the charge in the Commonwealth indictment. Fifty kilograms of the shipment were supplied to GH, who in turn supplied it to Mokbel.

9 When the appellant was arrested by the police on 5 April 2007, on his own account he had received $124,000 from GH. GH said that he paid the appellant $162,400 and there were further substantial sums owing to the appellant at the time of his arrest.

10 The sentencing judge pointed out that the quantity of drugs capable of being manufactured from chemicals supplied by the appellant exceeded by several hundreds of times the threshold for a large commercial quantity of methylamphetamine. The volume of the substance imported from India was about fifty times greater than the threshold for a commercial quantity of phenylacetic acid.

11 The appellant is some 41 years old. He is the child of Italian parents. The appellant was a diligent and clever student, who obtained a degree in industrial chemistry. He had a number of jobs in the chemical industry before establishing his own business in 2000.

12 The appellant suffered a number of epileptic seizures as a child. His epilepsy is now controlled by medication. The appellant is married, and has two young children. He has no prior convictions and, in the course of the plea, eight character references from friends, relatives and business acquaintances were tendered, all speaking highly of the appellant's character.

13 A report by a psychologist was also tendered. The psychologist expressed the opinion that the appellant suffered from a major depressive disorder, although he did not link the disorder to the offending. The psychologist also observed that the appellant experienced shame and deep remorse.

14 The appellant gave an undertaking on oath to the sentencing judge to give evidence in accordance with the terms of a written statement he had made to the police. As will appear, he subsequently complied with that undertaking by giving evidence at a committal hearing.

The learned judge erred:

(a) in pronouncing sentence in the mistaken belief that, in State terms, the total effective sentence was one of 10 years' gaol;

(b) upon being informed that the effect of his orders would be a total effective sentence of 11 years' gaol, in failing to reconsider and then adjust individual sentences, the non-parole periods and/or the order for commencement of the Federal sentence.

16 In the course of his sentencing remarks, the sentencing judge pronounced the sentences to which we have earlier referred. At the conclusion of his sentencing remarks, counsel for the appellant said, 'it's a total effective sentence of eight years'. He was corrected by the sentencing judge who said: 'It's really 10 with eight'. The prosecutor then pointed out that the addition of five years on the Commonwealth offence to the six years on the State offence produced a total effective sentence of 11 years' imprisonment. His Honour said: 'I'm sorry. That's right. That's correct. My arithmetic's not too good.' The sentencing judge and counsel then went on to discuss other matters.

17 In our opinion, the exercise of the sentencing discretion miscarried. The sentencing judge apparently intended to pronounce a total effective sentence of 10 years' imprisonment but mistakenly fixed component sentences which produced a different result. We do not think his Honour's sentencing remarks are to be understood as meaning that he intended to impose a total effective sentence of 11 years' imprisonment but, by a slip, stated that it was 10 years' imprisonment. In our opinion, the sentencing judge mistakenly imposed a longer sentence than he thought appropriate.

18 That conclusion is sufficient to reopen the sentencing discretion.[1] It is necessary, however, to address several other grounds before moving to the question of re-sentencing.

19 The second ground of appeal is that the sentencing judge erred:

(a) in failing to state, in accordance with s 6AAA(2) of the Sentencing Act 1991 (Vic) ('Sentencing Act'), the total effective sentence and the non-parole period he would have imposed but for the plea of guilty to the State offence; and

(b) in allowing 'a discount of only 20 per cent for the early plea of guilty'.

20 In the course of his sentencing remarks, his Honour said:

For the purposes of s 6AAA of the Sentencing Act, I state that I have imposed a sentence, being a term of imprisonment in respect of the State count, and I have reduced the sentence I would have imposed but for your plea of guilty by 20 per cent. Had it not been for your plea of guilty to the charge and with the expressions of remorse for you [sic] conduct, I would have imposed an effective term of imprisonment of 15 years and I would have directed that you serve at least 12 years of that sentence before being eligible for release on parole.

The sentencing judge similarly said that he had reduced the sentence on the Commonwealth count by 20 per cent by reason of the plea of guilty.

21 As to non-compliance with s 6AAA(2), it is true that the sentencing judge did not in terms state the total effective sentence and non-parole period he would have imposed but for the plea of guilty. But he did identify the discount that he had made for the plea of guilty, which might be thought to have conveyed the essential information. In any event, the notional sentence pronounced pursuant to the provisions of s 6AAA is not part of the sentence imposed from which an appeal lies.[2] Non-compliance with the requirements of s 6AAA cannot affect the validity of the sentence imposed.

22 The second part of the ground contends that the allowing of (only) a 20 per cent discount for the plea of guilty constituted specific error. Such a contention cannot be maintained. There is nothing in the language of s 6AAA to suggest that Parliament intended, by enacting that provision, to introduce into the law of sentence appeals a new category of specific error based on the (in)adequacy of the sentence discount given for a plea of guilty.

23 The establishment of such a category of error would be a radical departure from established law. Sentencing judges are required to synthesise a large number of factors in order to arrive at an appropriate sentence. A plea of guilty is one of those factors. Judges are not permitted to take a starting-point and then add or subtract periods of time representing aggravating or mitigating circumstances (as the case may be).[3] Accordingly, it is not to be supposed that in arriving at the sentence the subject of this appeal his Honour deducted a specific period for the plea of guilty. There is, as a result, an inherent artificiality in the requirement which s 6AAA imposes on sentencing judges, to revisit sentences which are the product of an instinctive synthesis and state the sentences that would have been imposed absent one factor, the plea of guilty.[4]

24 What matters for present purposes is that the 'discount' - that is, the difference between the notional sentence and the actual sentence - is not examinable for specific error. As this Court said in Burke:[5]

A complaint about the sentence discount ... identified in the s 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.

In other words, a complaint about the discount for the plea of guilty can only ever be a particular of a ground contending that the sentence was manifestly excessive, that is, outside the range reasonably open to the sentencing judge in the circumstances of the case.[6] What Buchanan JA said in R v Howard[7] should not be taken to have suggested otherwise.

The learned judge erred:

(a) in reducing the weight to be accorded to the assistance to the authorities by reason of the view that the offending was at "the upper level", required general deterrence, was prevalent and involved high moral culpability;

(b) in allowing only a "discount of 20 per cent for co-operating with the prosecution and offering and giving evidence for the Crown";

(c) in respect of the Federal offence, in failing to distinguish the discount for past co-operation with the authorities and a discount for the undertaking as to future co-operation with the authorities for the purposes of ss 16A(2)(h) and 21E(1) of the Crimes Act 1914 of the Commonwealth.

27 The sentencing judge made the following observations with respect to the discount for co-operation with the authorities:

You are entitled to some discount for your offer and undertaking to give evidence for the prosecution. But in my opinion, you are not entitled to the same level of discount in sentence on each count as was given to GH. I am of the opinion that in addition to any discount to which you are entitled for having pleaded guilty to each count, you are entitled only to a further discount of 20 per cent for cooperating with the prosecution and offering and giving evidence for the Crown. That is because I think the value of your evidence is limited. It could only relate to perhaps corroborating GH, and in my view you do not face the same level of threat or risk of harm for doing so. Further, I am of the opinion that your offending in each count was at the upper level for this kind of offending. As I said earlier, general deterrence must be an important sentencing principle in each count. Trafficking is especially a prevalent offence and your moral culpability, motivated as it was by sheer greed, is, in my opinion, high.

...

[I]n relation to the State count, I have reduced the sentence I would have imposed by a further 20 per cent to reflect the fact that you have been cooperative with the prosecution and have signed an undertaking to give evidence against others if required to do so, and have given sworn evidence to that effect before me.

...

[I]n relation to the Commonwealth count, I have reduced the sentence I would have imposed by a further 20 per cent to reflect the fact that you have been cooperative with the prosecution and have signed an undertaking to give evidence against others, if required to do so, and have given sworn evidence to that effect before me.

28 It seems clear from the highlighted passage that his Honour did reduce the weight to be accorded to the appellant's co-operation with the authorities because of his view that the offending was 'at the upper level' of seriousness, general deterrence was important, the offence was prevalent and the appellant was motivated by greed. The complaint is that these features of the offending did not bear relevantly on the weight to be attributed to his co-operation.

29 As his Honour stated in his sentencing reasons, however, he was here applying what this Court (Nettle JA, with whom Buchanan and Ashley JJA agreed) said in R v Johnston,[8] as follows:

There is also a further difficulty that, in the absence of legislative prescription or authoritative appellate pronouncement, there is no necessarily correct amount of the informer discount in a given case. While there are decisions which suggest a discount of 50%, or perhaps even as much as two thirds, it is inevitable that circumstances will differ between cases. For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive. In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough. Other relevant considerations include the nature and gravity of the crime, the offender's moral culpability, prevalence and the need for deterrence of the crime in question, and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.

30 Importantly for present purposes, the Court in Johnston concluded as follows:

Under a more perfect sentencing regime, the level of informer discount might be worked out as a matter of social policy and provided for expressly in legislation. But as it is, sentencing judges must make do with their own conceptions of what is desirable. Effectively, the only safeguard is the relatively rough and ready measure of manifest excessiveness or inadequacy as a ground of appeal.[9]

In other words, as with the discount for the plea of guilty, a complaint about the discount for co-operation can only be addressed (absent any mistake of fact) as a particular of manifest excess.

31 In the present case, it would appear, the judge was not given accurate information about the nature and extent of the appellant's co-operation. In the course of the plea, the prosecutor told his Honour that the evidence which the appellant could give was 'of such limited value' that he might not even be called to give evidence. In the course of the appeal hearing, however, counsel for the appellant informed the Court that the appellant had been called to give evidence at a committal proceeding and was likely to be giving evidence at the trial of the relevant charges. After making enquiries, counsel for the Crown confirmed in a supplementary submission that the appellant had indeed given evidence at the committal, and been cross-examined, and was to be called to give evidence at the trial. 'The purpose of that evidence is background material to establish which chemicals and equipment were supplied to GH,' the submission stated. (Subsequently, the appellant's solicitor filed an affidavit verifying that the appellant had given evidence for the prosecution at a trial in the Supreme Court.)

32 The submission for the Crown was that, even so, the appellant's co-operation was not of great value. In particular, it was submitted that:

there was no evidence of direct danger to the appellant as a result of his giving evidence; and
his evidence did not directly implicate any third person; and
accordingly, it was not open to conclude on the balance of probabilities that his life would be at risk from any such person.

33 In a supplementary submission, counsel for the appellant conceded that the evidence given by the appellant did not directly implicate any third person, but submitted that the evidence did

provide important support for the evidence of GH, who apparently dealt directly with those the subject of the trial. Thus, the appellant's evidence is very significant.

But, more importantly, it is unrealistic that the types of distinction that the respondent draws - between direct and indirect inculpation - would make any meaningful difference to the fear of reprisal or the risk of reprisal anyway. The fact is that anyone who informs in the manner the appellant has is a marked man. He is in protection ... He will remain in protection for the duration of his extremely long sentence. He has been and will continue to be a marked man during his sentence and beyond (see eg R v Rostom [1996] VicRp 60; [1996] 2 VR 97, 102). He will never know whether or not he or his family is at risk of physical harm. Not knowing is as bad as knowing. There is nowhere to run in prison. And the fear of the unknown on the outside is also a form of imprisonment in itself.

34 With respect, we think there is real force in the appellant's submission. In our opinion, the fact that the appellant could give evidence implicating only GH, and not others higher in the trafficking enterprise, should not have had any significant effect on the discount to be given for his co-operation. The appellant gave evidence of an important step in the production of amphetamine and - critically - exposed himself publicly as an informant, with all the attendant risks.

35 Moreover, as defence counsel had pointed out on the plea, there is clear authority in this Court that

... [It] is the genuine co-operation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective. The information must be such as could significantly assist the authorities. Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.[10]

In the present case the appellant had given full and genuine co-operation to the authorities. It was accepted on the plea that, at the time the appellant provided his detailed statement to police, he was unaware that GH had already offered to assist.

36 That the appellant had already given evidence at the committal, and was to give evidence at the trial, was surely sufficient to demonstrate - without further enquiry - that his evidence was of significant assistance to the authorities. As the New South Wales Court of Criminal Appeal said in R v Cartwright:[11]

It would entirely subvert the benefit otherwise afforded to the public interest if, in cases where information has been given to the authorities, it became necessary for the sentencing judge to inquire into the investigative and

prosecuting procedures in order to ascertain the extent objectively to which that information was in fact effective.

37 For these reasons, in our view, the appellant was entitled to a very substantial discount for his co-operation.

The learned judge erred:

(a) in sentencing on the basis that the appellant's offending was substantially different from and more serious than that of GH;

(b) in imposing sentences that infringe the principle of parity among co-offenders when regard is had to the sentence imposed on GH.

39 GH was sentenced (by a different judge) to a term of three years' imprisonment, which was wholly suspended for a period of three years, when he pleaded guilty to a count of trafficking in a large commercial quantity of methylamphetamine, spanning the same 13 month period alleged against the appellant. Counsel for the present appellant submitted that GH's offending was more serious than the appellant's, in that GH was already involved with Peters, he had a significant interest in the importation of phenylacetic acid and he had recruited the appellant.

40 As to the relative value of their co-operation, counsel for the appellant conceded that GH 'because of his greater involvement knows more', such that the forensic value of his evidence was likely to be more significant. Counsel submitted, however, that this difference did not justify any significant sentencing differential between GH and the appellant, in view of the serious risks to which the appellant's co-operation had exposed him and to which he would continue to be exposed.

41 We have reviewed the reasons for sentence relating to GH. The sentencing judge in that case characterised GH's role as that

of a salaried middle-man between those who wanted the chemicals and those who had access to them. You were in no way [involved] beyond that limited role, nor would you have been involved in a criminal activity at all without the syndicate recruiting you...

You knew that the chemicals would be used for an illicit purpose involving the manufacture of drugs but I accept that you did not know what you were really getting into or the magnitude thereof at least at the early stage.

42 There is little in this description which could justify the sentencing differential between GH and the appellant. On the contrary, what is most striking is the degree of similarity between their respective roles and their relative detachment from the core activities of the syndicate. The appellant was, of course, even further removed than GH who (unlike the appellant) had direct dealings with Horty Mokbel.

43 Moreover, we think there is real force in the appellant's submission that what warrants a significant discount for co-operation - apart from the genuineness of the co-operation - is the risk to which an informer exposes himself. In our view, it is neither possible nor appropriate for a sentencing judge to make a detailed assessment of risk, less still for sentence differentials to be finely calibrated on the basis of comparative levels of risk.

44 With respect to his Honour, we are unable to discern a justification for the very large sentencing differential between GH and the appellant. To repeat - the appellant was sentenced to eight years' imprisonment, with a minimum of six years, for the same trafficking offence (in respect of the same quantity over the same period) for which GH received a wholly-suspended sentence of three years. The prosecutor was right to say to the sentencing judge that the sentence imposed on GH was 'extraordinarily lenient' but, when asked by the judge why there had been no Crown appeal against that sentence, all the prosecutor could do was refer to GH's 'central importance in a future prosecution'.

45 As the High Court and this Court have repeatedly said,[12] proper concern for parity of sentencing between co-offenders is one of the fundamental requirements of the rule of law, and one of the conditions of just punishment.[13] Thus, in R v William,[14] the Court (Winneke P) said:

The truth is that the sentence imposed upon the co-offender was ... far too low. But justice between co-offenders must prevail ...

46 We have not overlooked the fact that the judge was referred to, and relied on, the following statement by Eames JA in R v Nguyen:[15]

Where the comparator sentence is excessively low, the correct approach of the sentencer is not to seek to match that lenient sentence with one of his or her own, but to have regard to the other sentence, taking it into account in a broad way, when exercising his or her own discretion, and giving it such weight as it deserves in the circumstances of the case.

47 We are, of course, bound by what the High Court has said regarding the importance of parity. Like the Court in Teng v The Queen,[16] we take as our guide the following statement by Mason J in Lowe v The Queen:[17]

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.

48 Because of our conclusions on grounds 1, 3 and 6, the sentencing discretion is reopened and we must re-sentence the appellant. Although we need not consider the ground of manifest excess, some of the matters raised in support of that ground are relevant to re-sentencing.

49 Counsel for the appellant relied upon a number of mitigating factors, as follows: the appellant made admissions upon being interviewed; pleaded guilty at an early stage; was genuinely remorseful; was of prior good character; suffered physical and mental health difficulties, namely, epilepsy and depression; had excellent prospects of rehabilitation; provided assistance to the authorities; and would serve his sentence in protection.

50 Counsel also submitted that the cumulation ordered by the sentencing judge overlooked the fact that the importation the subject of the Commonwealth offence occurred during the period of trafficking the subject of the State offence and provided the basis for some of that trafficking. The Commonwealth offence required proof that the importation was carried out in the belief that the imported substance was intended to be used to manufacture a controlled drug.

51 On the other hand, the State offence was indeed serious. The appellant's offending continued over a period of more than one year. He knew that the chemicals supplied by him would be used to produce methylamphetamine. The quantities of those chemicals were capable of producing more than 100 kilograms of methylamphetamine. The large commercial quantity of pure methylamphetamine specified in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) is 750 grams. The appellant's motivation was financial gain. Finally, the supply of the chemicals was a breach of a position of trust which gave the appellant access to the chemicals.

52 The maximum sentence for the State offence was imprisonment for life. Counsel for the respondent on the appeal referred to sentencing statistics showing a median sentence of six years' imprisonment which, he submitted, showed 'a great gap between existing sentence practices and the guidance given by the maximum penalty'. Counsel submitted that the range of sentences applicable to murder (which also carries a maximum of life imprisonment) should be applied to those convicted

52 of trafficking in large commercial quantities of drugs of dependence. He pointed out that the median sentence for murder was 18 years' imprisonment.[18]

53 Whatever the merits of such a submission might be, it ought not to have been advanced on the present appeal, for the following reasons. The sentencing judge must be taken to have sentenced the appellant consistently with current sentencing practices for this offence. The appellant was certainly entitled to assume, when he made the decision to plead guilty, that the judge would do so.[19] In those circumstances, it is simply not open to the Crown on appeal to contend that a sentence which (ex hypothesi) was outside the range indicated by current sentencing practice could nevertheless be upheld on the basis that current sentencing practice was inadequate.

54 That said, the maximum penalty is always an important consideration. The maximum shows Parliament's view of the gravity of the offence and is a consideration to which regard must be had in determining what is an appropriate sentence.[20] The appellant participated for gain over a considerable period of time in trafficking that far exceeded the quantity which Parliament views as constituting a major crime.

55 For the reasons we have given, the re-sentencing in this case must ultimately be governed by the circumstances peculiar to the case, namely, the powerful consideration of parity with the very low sentence imposed on GH, and the need to give proper weight to the appellant's co-operation.

56 Accordingly, we would re-sentence the appellant to be imprisoned for a term of five years with a minimum term of three years on the State count and for a term of five years with a minimum term of three years on the Commonwealth count. The sentence on the Commonwealth count is to commence on 6 October 2009.[21] The total effective sentence is therefore six years' imprisonment. The appellant is to serve four years' imprisonment before he is to be eligible for parole.

57 These sentences have been discounted by reason both of the appellant's pleas of guilty and his co-operation. As already noted, the appellant has fulfilled his undertaking to co-operate. But for the appellant's co-operation, we would have sentenced him on the Commonwealth count to a term of eight years' imprisonment, with a minimum of five years' imprisonment.

58 So far as the pleas of guilty are concerned, counsel for the Commonwealth Director of Public Prosecutions submitted that we should treat the requirement in s 6AAA of the Sentencing Act as applicable (by force of s 79 of the Judiciary Act 1901 (Cth)) to Commonwealth offences. On that basis, we make the requisite declaration with respect to each offence, as follows.

59 Had it not been for the appellant's pleas of guilty, we would have sentenced him as follows:

(a) on the State count, to seven years' imprisonment with a minimum of four years; and

(b) on the Commonwealth count, to seven years' imprisonment with a minimum of four years.

We would have directed that the sentence on the Commonwealth count commence after the expiration of the first two years of the non-parole period of the State sentence, giving a total effective sentence of nine years' imprisonment and a non-parole period of six years.

[1] See Farrell v The Queen [2010] VSCA 251, [22]-[24].

[2] R v Burke [2009] VSCA 60; (2009) 21 VR 471, 477 (Maxwell ACJ, Redlich JA and Vickery AJA) ('Burke').

[3] See Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 378 (McHugh J); Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 611 (Gaudron, Gummow and Hayne JJ).

[4] Giordano v The Queen [2010] VSCA 101, [45] ('Giordano') (Mandie JA, with whom Weinberg and Bongiorno JJA agreed).

[6] See also Giordano [2010] VSCA 101, [46]; Diver v The Queen [2010] VSCA 254, [26]; and Birrell v The Queen [2010] VSCA 262, [27]-[28]; cf Key v The Queen [2010] VSCA 242, [24].

[7] [2009] VSCA 281, [10]-[14].

[8] [2008] VSCA 133; (2008) 186 A Crim R 345, 350 [18] ('Johnston' (citations omitted) (emphasis added).

[10] R v Freeman [2001] VSCA 37; (2001) 120 A Crim R 398, 405 [37] (Coldrey AJA, with whom Brooking and Tadgell JJA agreed), applying R v Su [1997] 1 VR 1, 78-9.

[11] (1989) 17 NSWLR 243, 253 (cited with approval in R v Su [1997] 1 VR 1, 78).

[12] See, for example, Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610-11 (Mason J); R v William [2001] VSCA 130, [11] (Buchanan JA), [13] (Winneke P) (Brooking JA agreed); Teng v The Queen [2009] VSCA 148; (2009) 22 VR 706, 723; Nguyen v The Queen [2010] VSCA 180, [25] (Maxwell P, Weinberg JA).

[13] For recent illustrations of the importance of ensuring parity of sentencing, see Morgan v The Queen [2010] VSCA 248 and Harrington v The Queen [2010] VSCA 249. The latter case, like the present, involved sentencing for the offence of trafficking in a large commercial quantity of a drug of dependence.

[14] [2001] VSCA 130, [13] (Brooking JA agreed).

[15] [2005] VSCA 40, [20] (Callaway and Buchanan JJA agreed).

[18] The same proposition was advanced in DPP v McInnes [2009] VSCA 144, [20].

[19] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 549 [69].

[20] Section 5(2) of the Sentencing Act. See DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 550 [71]-[74].

[21] Previously this judgment stated that the sentence on the Commonwealth count was to commence 'upon the expiration of the first twelve months of the non-parole period of the State sentence.' On 2 March 2012 the Court of Appeal amended the Court's order to ensure the intention of the original judgment and orders was given effect to. The above wording reflects this amendment. These amendments were made pursuant to s 412 of the Criminal Procedure Act 2009 (Vic).

Criminal Code Act 1995(Cth)

Judiciary Act 1901(Cth)

Poisons and Controlled Substances Act 1981

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