Criminal Law - Appeal and new trial - Grounds for interference - Sentence manifestly excessive or inadequate - Drug trafficking charges - Continued offending while on bail - Significant operation - Whether sentence of 12 years and six months' imprisonment with a seven year non-parole period manifestly excessive - General deterrence a significant factor.

Judgment Number: [2016] TASCCA 6

1. I have had the benefit of reading the reasons for judgment in draft form of Estcourt and Pearce JJ. I agree in substance with their reasons and would also dismiss the appeal.

1. This appeal is brought against orders of Porter J of 16 March 2015, convicting and sentencing the appellant on two counts of trafficking in a controlled substance contrary to s 12(1) of the Misuse of Drugs Act 2001.
2. There were two indictments before the learned sentencing judge alleging trafficking between 7 August 2012 and 15 January 2014, and between 1 June 2014 and 28 July 2014 respectively. The appellant had pleaded guilty to both.
3. His Honour regarded the crimes on the two indictments as representing one course of conduct, and on the crimes of trafficking he sentenced the appellant to 12½ years' imprisonment and ordered that he not be eligible for parole until he had served 7 years.
4. The appeal is brought on two grounds. The first is that the sentence was manifestly excessive. The second is that his Honour did not give sufficient weight to the appellant's plea of guilty.

1. The facts are somewhat complex.
2. In about October 2013 Tasmania Police, assisted by the Australian Federal Police and the Australian Customs and Border Protection Service commenced an investigation into the unlawful importation and trafficking of illicit drugs by affiliates of the Rebels Outlaw Motorcycle Club, of which the appellant, together with Joshua Williams and Luke Rusher were members.
3. Intercepted communications showed that the appellant had made numerous phone calls and sent text messages relating to the purchase and on-selling of the amphetamine and cannabis by him, and investigations confirmed the appellant's involvement in the importation and distribution of amphetamine and cannabis between 7 August 2012 and 15 January 2014.
4. Essentially, the appellant sourced amphetamine from overseas and had the drugs delivered via postal services, with a number of addresses used for delivery.
5. Between August 2012 and November 2013 the appellant made at least 13 Western Union payments totalling $116,900 to two Chinese entities, and two payments totalling $30,000 to Cryptospend, a vendor of virtual money known as bitcoins.
6. Between 14 July 2013 and 16 February 2014 seven parcels containing drugs ordered and paid for by the appellant were intercepted by the Australian Customs and Border Protection Service and Tasmania Police. The parcels were addressed to the appellant or to associates of his including his girlfriend Kayla Kelleher. They were opened and found to contain:

1. A trafficable quantity of cocaine is 25 grams. The 25 grams sent to Kayla Kelleher at 203 Roslyn Avenue, was therefore a trafficable quantity.
2. A trafficable quantity of amphetamine is 25 grams. The 1,478 grams were sent to various addresses, therefore there was 59 times the trafficable quantity.
3. A trafficable quantity of MDMA is 10 grams. The 1 kilogram was sent to Adam Townsend at 1794 Cygnet Coast Road, therefore there was 100 times the trafficable quantity.
4. Five of the seven parcels were intercepted in Tasmania. The fifth parcel was intercepted in Western Australia. The seventh was intercepted in Melbourne.
5. On 16 February 2014 the Australian Customs and Border Protection Service intercepted the seventh parcel and police conducted a controlled delivery of the parcel to Aaron Townsend.
6. On 20 February 2014 Aaron Townsend and Adam Van den berg were taken to the Kingston Police Station.
7. On being interviewed Townsend said that the appellant told him that he had ordered drugs and that a package would be delivered to Townsend's address. Townsend was given instructions to call the appellant as soon as the package arrived. He was to be "looked after" for his involvement and he suspected that meant he would be given money or drugs. He said the appellant imports drugs via the mail and the appellant needed to use his address as his previous attempts had been intercepted.
8. Townsend also gave a detailed account of when and how he and others had purchased amphetamine from the appellant. He said the appellant stored it in freezer bags in the freezer and usually weighed it on electronic scales. The appellant sold amphetamine for $150 for a gram and $1,050 for 3.5 grams.
9. Adam Van den berg was interviewed and said that the appellant sold drugs and brought drugs into Tasmania by having them sent to various addresses. He said that he had a conversation with the appellant in September 2013 about the appellant sending drugs to his parents' house in Blackmans Bay.
10. Van den berg last purchased amphetamine from the appellant in December 2013 and usually purchased it in gram weights.
11. On 15 January 2014, in the presence of the appellant, Tasmania Police executed search warrants at the appellant's address of 26 Wells Parade, Blackmans Bay.
12. There police located and seized, amongst other things:
    • 2.8 grams of amphetamine in a plastic sachet in the freezer;
    • amphetamine in a plastic tub (net weight 8.2 grams including the plastic tub);
    • a set of electronic scales with traces of amphetamine;
    • a vacuum seal;
    • 73.7 grams of ecstasy tablets;
    • A small quantity of cannabis and a smoking device;
    • $18,316.20 in cash.
    • a "tick sheet" showing that in excess of $40,000 was owed by eight people including Joshua Williams and Luke Rusher, for sales of amphetamine on credit.
13. The appellant consistently used two mobile phones, one was registered to him and the other was registered with false details. The phone calls and text messages made and sent from them demonstrated:
    • the importation of amphetamine and MDMA;
    • the sale of amphetamine and cannabis by the appellant; and
    • the appellant's affiliation with the Rebels Outlaw Motorcycle Club.
14. Significantly, on 22 December 2013 the appellant and Samuel Watterson had a conversation about the appellant providing Watterson with an ounce of amphetamine for $2,000 or an "8 ball" (3.5 grams/eighth of an ounce) for $1,000. Watterson was to pay some cash and some was to be on credit, or "tick".
15. On 25 February 2014 Watterson was interviewed and, under caution, admitted purchasing an ounce of amphetamine from the appellant.
16. On 12 February 2014 the appellant was interviewed again by police and was charged with trafficking and then bailed by police.
17. The appellant continued to traffic in amphetamine whilst on bail in relation to this matter. That trafficking involved the importation of two further significant amounts of amphetamine.
18. The first of those packages was seized on about 23 June 2014 after a courier service attempted to deliver it to an address in Mornington but was told that the addressee did not reside there. It contained 1.939 kilograms of amphetamine and caffeine.
19. The second was destined for delivery to a person in Queensland and from there ultimately to the appellant in Tasmania. It was seized in Queensland on 28 July 2014 after a controlled delivery to a friend of the appellant, Jyden Kirkpatrick, who was to forward it to the appellant. It contained 1.965 kilograms of amphetamine.
20. The appellant was arrested on that same day at his home in Tasmania. When he was arrested police found $17,000 in cash in a paper bag on which the appellant's fingerprints were detected.
21. The appellant's bail granted by this Court in relation to the first indictment setting out the count of trafficking between 7 August 2012 and 15 January 2014 was revoked on 8 August 2014.
22. It was common ground before the learned sentencing judge that in respect of both indictments the amphetamine and the MDMA had a potential street value in excess of $11 million. His Honour appears to have approached the calculation somewhat differently, as he said in his comments on passing sentence:

"The total potential value of the drugs seized in and destined for the State is in excess of $10.6 million, although the actual amount realised may have been much less if sold in larger than the minimum street quantities."

1. As I often remark in such cases, Professor K Warner in her book Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, at 440, has said, on the subject of appellate review of sentences for manifest excess or inadequacy:

"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) [1936] HCA 40; 55 CLR 499 at 504] Cranssen [(1936) [1936] HCA 42; 55 CLR 509 at 519] and Harris [(1954) [1954] HCA 51; 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."

1. And, as I have remarked in the past in appeals such as the present, where the sole ground is manifest excess or manifest inadequacy, I bear Professor Warner's caveat in mind and content myself with setting out what Porter J said in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34]. His Honour there observed:

"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R [1936] HCA 40; (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust."

32 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:

'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted.]

33 Later, in Wong v The Queen (above) at [58] Gaudron, Gummow and Hayne JJ said:

'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'

34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. ... ."

1. In Griffiths v The Queen (1977) 137 CLR 293 at 310, Barwick CJ said:

'Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle'.

1. More recently in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, another case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly, if I may comment, with respect, summarised the relevant principles at [8] as follows:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

1. In passing sentence the learned sentencing judge commented on the appellant's personal circumstances as presented in the plea in mitigation made on the appellant's behalf as follows:

"The defendant is now 26. He does not have a recorded history of drug offending, but has been dealt with for driving offences and some offences of dishonesty. On 16 February 2010, for driving whilst disqualified, he was sentenced to one month's imprisonment the execution of which was wholly suspended on conditions for three years. I mention this because this offending puts him in breach of a condition of suspension and I have been asked to activate that sentence, which I must do unless I consider it unjust. Crown counsel also highlighted the fact that the defendant had continued to offend at a very serious level after having been searched and spoken ton (sic), and having been charged with trafficking and given bail, and when intercepted messages show that he was aware that the police were still alert to his activities he endeavoured to spoil their efforts. I have the benefit of counsel's submissions on the defendant's behalf and a psychologist's report from a Mr Hatten dated 29 January 2015. The defendant had an upbringing disrupted by his parents' separation when he was 8 but it is otherwise unremarkable. His mother and an uncle were able to ensure his education at a prominent private boys' school, but apparently the defendant felt disadvantaged when he compared his circumstances to other students. He performed well academically and excelled in swimming but the commencement of cannabis use at the age of 15 saw the onset of apathy, which led to him giving up that and other activities. Later he became depressed, anxious and angry and sought psychiatric help but did not properly engage in the process. He changed school for a time before returning to the original school and took up work in the building trade when he left. He commenced a relationship with a young woman. That relationship has been episodic due mainly, it appears, to her antagonism to his involvement with drugs. It seems that at about the time he started work he became aggressive at home distressing his mother and two younger siblings, and he was asked to leave. Precisely what his personal problems were at the time is not made clear, but Mr Hatten says that he dealt with them by seeking solitude and peace in drugs, mostly cannabis, and alcohol. He incurred a significant debt to a drug supplier, and was given the option to deal on behalf of the supplier to clear the debt. Once the debt was cleared, he saw the way to obtain money quickly. He decided, though, that he did not want to continue and, when he attempted to extricate himself, he reports that he was threatened with physical harm. The defendant's counsel has expressly disavowed the suggestion that the effect of these threats was still operating at the time of this offending, or that he was in fear of any person. To take the words from Mr Hatten's report, before being arrested there was a phase when the defendant was happy to adopt the underworld, underbelly gangster persona. However, the price of maintaining a false impression of being an aggressive and violent character was contrary to his personality and family upbringing. Since he was arrested and remanded in custody, he has come to the conclusion that he does not wish to commit any more criminal activity, and that he will use his time in custody to repair the damage he has done to himself and others, and to regain trust in his ability not to re-offend. He has severed ties with the Rebels Motorcycle Club and has undertaken that he will cease all contact with his former associates. Ultimately, he wants to reunite with his long-term partner and hopes to start a family. He has prospects of employment in the building industry with a school friend who has been prepared to stand by him. Mr Hatten says there is no history of mental health disturbance that could explain the defendant's entry into criminal activity, but there is a clinical history of depression and anxiety disorders. Anxiety, depression and substance abuse are linked, and in this case their onset was caused by the breakdown of the family unit. Mr Hatten says, however, that the offending is attributable to simple criminal actions or bad choices rather than an expression or extension of mental illness or family circumstances. On the defendant's behalf it was put that he was not at the head of the organisation, although obviously part of the group. There is, in fact, some evidence suggesting that the defendant was answerable to, and to extent directed by, others. It is also submitted that the defendant had taken significant steps towards his rehabilitation. They include recognition of the extent of his wrongdoing, steps to mend his supportive relationships, and his successful participation in drug rehabilitation and similar educative programs. I have a report from the facilitator of the Getting Smart Program conducted at the prison by the Justice Department. The program is designed to teach techniques used to overcome what are described as mal-adaptive behaviours which include criminal activity and substance use. The reports states that the defendant showed a high level of motivation to complete the program, and displayed a good level of openness and insight in relation to his drug use and criminal behaviour, along with a determination to learn from his mistakes and to turn things around for a positive future for himself. It is put that there has been a demonstrable change since being in custody. He has been a model prisoner and his time in custody has, I am told, had a salutary effect on him. Counsel submitted that all of this diminishes the weight to be given to the factor of personal deterrence. The defendant is put forward as a young man with clear remorse and demonstrated rehabilitation."

1. It is convenient here to deal with the second of the appellant's grounds of appeal, namely that the learned sentencing judge did not give sufficient weight to the appellant's early pleas of guilty.
2. In my view there is simply no merit in this ground. His Honour observed in his comments on passing sentence with specific reference to what was put to him on the plea in mitigation concerning the pleas of guilty being made plain to the State from early December 2014 that the appellant's "pleas of guilty were indicated an early stage with procedural matters and Court time delaying the final disposition somewhat". And his Honour also said that he took into account the matters put on the appellant's behalf, that they had not been challenged and there was no reason to reject them. His Honour said that those matters would be reflected in the orders he made. As will be seen from my observations later in these reasons, in my view, those matters were so reflected.
3. I would dismiss ground 2 of the notice of appeal.

1. The learned sentencing judge made reference in his comments on passing sentence to the scourge of amphetamine and the evils of MDMA, and proceeded to sentence the appellant as follows:

"It is perhaps well-known, but it needs to be restated. that amphetamine use in the community is extremely costly in human or personal terms, and in economic terms. The drug causes much disruption in the community. Addiction is a health issue. Addiction leads to the commission of crime for funding. Use of the drug is often responsible for violence, some of which is dealt with by the courts, some of which is unseen and undetected. Police and emergency service resources are often involved in dealing with the consequences of its use and abuse. The use of MDMA, cocaine and cannabis also, of course, have serious health and social consequences. To be engaged at such a high level of importation and distribution, and in the peddling of the cause of much human misery and community disruption is a very grave matter. The total potential value of the drugs seized in and destined for the State is in excess of $10.6 million, although the actual amount realised may have been much less if sold in larger than the minimum street quantities. In addition, the defendant was responsible for unquantifiable actual sales. It does not appear that a case of this scale has previously come before the courts in this State. There is no discernible tariff in the sense of a 'going rate' for offending on this scale. Any discernible range in relation to trafficking in drugs of this type is of little assistance. In this case, the need to deter others and to strongly denounce and condemn the conduct is of paramount importance, but I take into account the matters put on the defendant's behalf. They have not been challenged and there is no reason to reject them. They will be reflected in the orders I make.

Mr Stebbins, I hope I have made plain to you the proper view to be taken of the sort of conduct you engaged in. On any view of things, you played an important and significant role as organiser, collector, distributor and seller. The seriousness of your offending is aggravated by the fact that you continued to do what you were doing after having been warned, charged and bailed, and you further persisted when you knew the police were making inroads into your operation. You tried to out manoeuvre them. I do not see that there is anything compelling in your background to explain your involvement. A very heavy penalty is called for, but I do not lose sight of your age and the fact that you appear not to be beyond redemption. I activate the suspended sentence of one month's imprisonment to take effect from 28 July 2014. The crimes on the two indictments represent one course of conduct and on the crimes of trafficking you are sentenced to 12½ years' imprisonment. That will be concurrent with the one month term. Your attitude to authority during the course of the conduct impacts on the non-parole period and I order that you not be eligible for parole until you have served 7 years. I order the forfeiture of the sum of $18,316.20 along with the items specified in paragraph 46 of the statement of facts in the Crown papers filed on 11 February 2015. You will also pay analysis costs of $1,320."

1. In her written submissions counsel for the appellant, Ms Cuthbertson, provided reference to relevant sentencing material from other jurisdictions, in particular from Victoria. The material included the following:

15 The Crown accepted during the sentencing hearing that it is difficult to look at sentences imposed in different states due to the different factors involved, different maximum penalties and different purity levels: AB2 22 ll. 16-39 and R v Michieletto [1995] TASSC 87 per Slicer J at [21] to [23]. His Honour's attention was then directed to a number of interstate decisions: AB2 23 l. 16 - AB2 24 l. 6. They included the following:

(a) Seeto v Western Australia [2014] WASCA 221: appellant was an upper echelon drug dealer involved in importing large quantities of high purity methylamphetamine. He committed some of the offences for which he was sentenced whilst on bail. He had a significant prior record of similar offending having served periods of imprisonment for sale and supply of drugs and attracting a declaration he was a drug trafficker. The offences with which he was charged attracted maximum penalties of 25 years' imprisonment. A total effective sentence of 12 years' imprisonment was imposed on appeal.

(b) R v Casey [2002] VSCA 117: the appellant was found guilty of one count of being knowingly concerned in the importation of not less than a trafficable quantity of methylamphetamine and one count of attempting to possess not less than a trafficable quantity of that drug. He had prior convictions for trafficking cannabis and was serving a sentence of imprisonment at the time of his sentencing. The offences involved the importation of liquid methylamphetamine in sports soft drink bottles, capable of producing 679g of pure amphetamine. He was arrested having attempted to facilitate the recovery of methylamphetamine from the liquid which had been substituted by Customs. He was sentenced to an effective sentence of 8½ years' imprisonment. That sentence was upheld on appeal, Winneke P noting the 'quantity of the drugs imported, the sophistication of the method which was chosen and the deliberate cunning and callous methods taken by the applicant to take possession of the prohibited imports': at [28].

16 The Victorian Sentencing Advisory Council ('the Council') has recently produced a report entitled Major Drug Offences Current Sentencing Practices which examines the current sentencing practices from 2008-09 to 2012-13 for major drug offences including trafficking in a drug of dependence in a large commercial quantity. The drug quantity thresholds for this offence are 1kg in the case of amphetamines and MDMA in a mixed form: p 8 [2.23]-[2.24] and Table 1. Using the analysis employed by the Council, the appellant's total course of conduct involved trafficking in a quantity of 6 times the large commercial quantity of amphetamine and 1 time the large commercial quantity of MDMA. The Council identified 72 cases over the five year reference period: p 36 [6.2]. Of those, 32 cases involved 2 to less than 10 times the threshold quantity: p 36 Table 7.

17 Over the reference period, the sentences imposed ranged from 3 years to 20 years' imprisonment, with a median total effective sentence of 7 years' imprisonment for a single charge and 7 years 10 months where multiple charges were involved: p 41 [6.23] and [6.26]. A cluster analysis identified two sub-groups of cases (Cluster 1 and Cluster 2). Cluster 1 comprised fewer cases involving methylamphetamine/ice, fewer cases of trafficking in a quantity of 10 or more times the large commercial threshold, and more cases where the offender displayed positive sentencing factors. In that cluster, the median total effective term of imprisonment was 6 years and 6 months. Cluster 2 cases comprised more cases involving methylamphetamine/ice, more cases of trafficking in a quantity of 10 or more times the large commercial threshold, and fewer cases where the offender displayed positive sentencing factors. In that cluster, the median total effective term of imprisonment was 10 years: p 3 [1.16]-[1.18].

18 The Council's Sentencing Snapshot: Trafficking in a large commercial quantity of drugs covering the 2008-09 to 2012-13 period identified 81 individual sentences. A total of 77 received a principal sentence of imprisonment, with 10 being sentenced to terms of imprisonment of 12 years or more. The median length of imprisonment imposed was 7 years: p. 4. The median total effective sentence was 8 years: p 6.

19 In Chandler v The Queen; Paksoy v The Queen [2010] VSCA 338, the Victorian Court of Criminal Appeal held that sentences of 15 years and 14 years imposed upon the appellants were manifestly excessive. They pleaded guilty to charges of trafficking a large commercial quantity of methylamphetamine. Both were engaged in the manufacture of methylamphetamine and 13.246kg of the substance in pure form was found at the premises they used for that purpose. Their sentences were reduced to 13 and 12 years imprisonment respectively."

1. Ms Cuthbertson submits that the sentence imposed by the learned sentencing judge was manifestly excessive. In her written submissions she contends as follows:

29 His Honour imposed a head sentence of imprisonment upon the appellant that was in excess of twice the length of the previous lengthiest sentences imposed in this jurisdiction. He also imposed a non-parole period that exceeded the minimum half non-parole period by 9 months. The non-parole period imposed also exceeded the lengthiest head sentence previously imposed for drug trafficking in this jurisdiction by 2 years.

30 In imposing the sentence that he did, he noted that:

'[i]t does not appear that a case of this scale has previously come before the courts in this State. There is no discernible tariff in the sense of a "going rate" for offending on this scale. Any discernible range in relation to trafficking in drugs of this type is of little assistance. AB1 96.'

31 There is no indication in his Honour's comments as to what, if any, 'yardstick' he has used in arriving at the sentence ultimately imposed.

32 His Honour's assessment of the scale appears in the comments on passing sentence to be primarily related to the potential value of the drugs seized in and destined for the State. It is submitted that caution needs to be taken in placing too much weight on the potential value when assessing the relative seriousness of an offence. As the cases set out above indicate, such values are not always calculated and when they are, the calculation methods are not always transparent or consistent. Particular care is warranted in this case where the least conservative method of calculation has been employed.

33 Considering the sentence imposed on the appellant in the context of the interstate sentencing information set out in paras 15-21 above, the following observations may be made:

(a) The head sentence is in excess of the median sentence of imprisonment imposed in Victorian cases of trafficking in a large commercial quantity by from 4 ½ (by reference to median total effective sentence) to 6 years (by reference to median cluster 1 sentences). It is submitted that the cluster 1 sentences provide the most appropriate yardstick subject to the qualifications relating to the applicability of sentences imposed in other states.

(b) The head sentence is on par with the sentences handed down by the Victorian Court of Criminal Appeal in Chandler v R; Paksoy v R in circumstances where the quantity of substances involved were far greater (18 times the threshold quantity) and the appellants were engaged in the manufacturing of the substances involved.

(c) The head sentence was greater than that imposed by the Western Australian Court of Appeal in Seeto v WA where the appellant in that case had previously served periods of imprisonment for like offences.

(d) The head sentence was greater than that imposed upon Jyden Kirkpatrick in circumstances where such a distinction was not warranted due to Kirkpatrick's prior record, role in the offence and involvement in importing a commercial quantity."

1. Finally, Ms Cuthbertson submits that the sentence imposed was not warranted having regard to the mitigating circumstances she pointed to. In her written submissions she wrote as follows:

"34 It is submitted that the circumstances of this case did not warrant the extent of departure from previous sentences imposed in this jurisdiction as:

(a) the offending was not particularly sophisticated in nature, involving the appellant using his own identification to carry out financial transactions and his own mobile phone to communicate with others involved. Compare this with Stocks and Thorley.

(b) the quantity of drugs involved is comparable with those involved in Bradshaw and Cordwell;

(c) he pleaded guilty at a relatively early stage. Compare this with Stocks, Thorley and Maynard.

(d) he did not have any relevant prior matters. Compare this with Williamson, Maynard, Delaney, Billinghurst and Leicester.

(e) the cash seized (approximately $35,000) and transactions referred to in the tick book (approximately $40,000) may be contrasted with the evidence of reward apparent in the following cases:

(i) Stocks and Thorley: commercial returns exceeding $200,000 each;

(iv) Billinghurst: weekly turnover of over $20,000 over a 3 month period;

(vii) Swan: unexplained wealth declaration of $700,000.

35 Other relevant mitigating factors include his relatively young age and positive prospects of rehabilitation.

36 It is submitted that in light of all of these matters, the head sentence imposed upon the appellant was plainly unjust. It represents a significant departure from the sentences previously imposed in this jurisdiction in circumstances that do not warrant the extent of the departure evident in the sentence imposed."

1. The magnitude of the appellant's trafficking is without precedent in Tasmania.
2. The starting point in the consideration of an appropriate sentence is, in my view, the observations of Blow CJ in Director of Public Prosecutions v Williamson [2013] TASCCA 6 at [13]- [24]. There, his Honour said:

"13 By Tasmanian standards, this was an extremely serious case of drug trafficking. Trafficking on such a scale is so rare in this State that it cannot be said that there is a sentencing tariff for such cases. Because the facts of every case are different, the consideration of sentences imposed in other specific cases is of limited value. However I think it is worthwhile surveying some of the heavier sentences that have been imposed in drug cases in Tasmania.

14 To the best of my knowledge, no sentences of longer than 5 years have been imposed in Tasmanian drug cases. Sentences of that length appear only ever to have been imposed on two co-offenders named Stocks and Thorley. Stocks received at least $220,000 as his share of the proceeds of a cannabis trafficking operation that was carried on over some two years. An appeal to the Court of Criminal Appeal was unsuccessful: Stocks v R (above). Thorley was also involved for over two years, providing capital, equipment and expertise, and receiving profits in excess of $200,000: R v Thorley [1999] TASSC 73.

15 In Tasmania v Maynard (unreported, 29 June 2011), Evans J sentenced a trafficker to 4½ years' imprisonment, with a non-parole period of 3½ years. That man was a persistent drug trafficker who was found in possession of methylamphetamine with a market value of about $32,500, a total of $48,200 in cash, a revolver and a pistol.

16 Sentences of 4 years' imprisonment have been imposed in several cases. In Vergos v R A89/1996, [1996] TASSC 154, the appellant had cultivated, transported and sold large quantities of cannabis over some two years. He had received almost $90,000 when apprehended, and had harvested a crop that was expected to return over $300,000. He pleaded guilty, and had taken significant steps towards rehabilitation. The Court of Criminal Appeal held that his sentence was not manifestly excessive.

17 In R v Delaney (unreported, 10 April 1997), Cox CJ sentenced an offender to 4 years' imprisonment, following a late plea of guilty, for trafficking in amphetamine and heroin over a period of 11 months. Police officers had seized drugs with a street value of at least $270,000 at the end of that period.

18 In Tasmania v Billinghurst (unreported, 24 August 2007), Crawford J (as he then was) imposed sentences of 4 years' imprisonment on two major suppliers of methylamphetamine. They had been trafficking in the drug for about three months, importing it into Tasmania, with a weekly turnover of about $20,000. Billinghurst had a worse record than his co-offender Jones. His Honour therefore fixed parole ineligibility periods of 3 years for Billinghurst and 2 years 3 months for Jones.

19 In Wisniewski v Tasmania [2007] TASSC 25, the appellant had been sentenced to 4 years' imprisonment, with a non-parole period of 3 years, for trafficking in MDMA or ecstasy over a period of some 11 months. He sold $150,000 worth of the drug over that period. The Court of Criminal Appeal held that the head sentence of 4 years' imprisonment was not manifestly excessive, but resentenced, him, imposing a non-parole period of 2 years instead of 3 years.

20 In R v Newman (unreported, 27 February 1992), Crawford J imposed a sentence of 3 years 6 months' imprisonment on a man for trafficking in cannabis on the basis that he was found with over $300,000 worth of the drug and was dividing it into small quantities for sale.

21 In Tasmania v Leicester (unreported, 13 May 2009), I imposed a sentence of 3 years 4 months' imprisonment, with 12 months thereof suspended and a non-parole period of 14 months, on a man who, over a period of some 4 years 10 months, had imported and sold hundreds of thousands of dollars worth of methylamphetamine. I suspended part of the sentence and imposed the shortest possible non-parole period because the defendant had been trafficking to fund the use of substantial quantities of the drug by his partner and himself without becoming wealthy, and had been making good progress towards rehabilitation since his arrest.

22 In Tasmania v Stevens (unreported, 10 December 2010), Evans J sentenced a man to 3 years' imprisonment, with a non-parole period of 18 months, in respect of a sophisticated hydroponic cannabis cultivation and sale operation that endured for over two years. The offender had previously been to prison for trafficking.

23 In R v Michieletto A45/1995, [1995] TASSC 87, Slicer J sentenced a man to 3 years' imprisonment for conspiring to traffic in cannabis, as well as 46 summary drug offences. He was involved in a commercial operation for which he was to receive at least $50,000. A significant mitigating factor in that case was that the offender co-operated with the police to the extent of revealing involvement in the cultivation of cannabis at 17 plantations, and preventing confrontations between police officers and armed members of his organisation.

24 Sentences of less than 3 years' imprisonment are a little more common in trafficking cases. I think it is fair to say that sentences in the vicinity of 2 years' imprisonment are generally attracted by involvement in commercial operations of a substantially smaller scale than the operation that is the subject of this appeal."

1. In Williamson the facts relating to the crimes and offences, as summarised by the learned sentencing judge, were as follows:

"These matters arose from a search of the defendant's vehicle after he disembarked from the Spirit of Tasmania in 2010 and was intercepted. A search of the vehicle revealed the following:

Four snap lock bags with a combined total of 58.8 gms of methylamphetamine.

Three bags containing a combined total of 8.5gms of ketamine.

One bag containing .4 gms of dimethyltryptamine (known as DMT), together with ketamine and cocaine.

A drink flask containing 700 millilitres of butanediol - sometimes referred to as liquid ecstasy.

A foil containing eight perforated patterned tickets containing LSD.

Three capsules of 3,4 methylenedioxymethcathinone, one of which also contained caffeine.

A quantity of prescription tablets including 30 of diazepam and one of Viagra.

Police also found a cash tin containing $13,700 in cash, digital scales, unused snap lock bags, cocaine preparation kit, smoking devices, in one of which DMT was detected, with methylamphetamine being detected in the other, tick sheets, travel documents showing regular travelling to Melbourne between June 2010 and November 2010, and two mobile phones, both containing drug-related text messages.

A search was conducted of the defendant's home at Lenah Valley. The following items were located in various parts of the house:

One capsule containing 3,4 methylenedioxymethcathinone.

An Ajax safe which was then locked, but opened by police a few weeks later.

Whilst the search of the defendant's home was underway, police made enquiries next door, as a result of which that house was searched pursuant to a search warrant. Items were seized from underneath the house. There was one box containing 2,248 capsules containing 3,4 methylenedioxymethcathinone and caffeine. There were 11 bags each containing one gram of caffeine and cocaine, and one bag containing 4.5 grams of caffeine and cocaine. Again numerous items referable to the preparation, mixing, weighing, packaging and sale of drugs were found, including sets of digital scales, snap lock bags, caffeine powder and a supplement powder, together with a number of mobile phone SIM packs. When the safe was opened, it was found to contain two brown paper bags containing a total of $199,900. A metal briefcase was also located. This contained:

Investigations led the police to a further address in Lenah Valley at which, in a filing cabinet, police found a plastic shopping bag containing three bundles of cash totalling $195,100. This bag was traced to the defendant.

The five counts of trafficking on the indictment represent various categories of controlled substances found in the defendant's vehicle and in the various properties. The three counts of dealing with property suspected of being proceeds of crime relate to the $13,700 in cash found in the vehicle, the $203,400 found in the safe and the $195,000 [sic] found at the other Lenah Valley address. The Crown has put the total value of all of the controlled substances in the accused's possession, but basing sales of the methylamphetamine on ounces or grams, at $105,000, with the Viagra contributing an additional $2,000. As far as the controlled substances are concerned, they are sometimes misleadingly referred to as party drugs, perhaps in order to distinguish them from the far more harmful and sinister types of controlled substances which exist. However that should not serve to deny the fact that these drugs can be addictive and pose very serious health risks, up to and including death, particularly if combined with the use of other substances such as other illicit substances or alcohol."

1. The sentence imposed by the learned sentencing judge in Williamson in respect of the 11 drug related charges to which the defendant had pleaded guilty was a global sentence of two years' imprisonment, and an order that the defendant not be eligible for parole until he had served 12 months of that sentence.
2. The Director of Public Prosecutions appealed against that sentence on the grounds that it was manifestly inadequate. The appeal was upheld. Blow CJ, with whom Tennent and Wood JJ agreed, said at [28]-[29]:

"28 In my view the mitigating factors in this case, whilst not insignificant, should not entitle the respondent to particularly lenient treatment. He committed very serious crimes. He was engaged in large-scale commercial criminal activity. He made huge profits. It must have taken him months, at least, to accumulate those profits. The drugs that passed through his hands were likely to cause a lot of misery to a lot of people. Because of that, the need for general deterrence was particularly important in this case. Taking all relevant matters into account, I think it would be appropriate for the respondent to be sentenced to 4½ years' imprisonment.

29 The shortest parole ineligibility period that may be imposed is one half of the head sentence: Sentencing Act 1997, s17(3). Because the respondent has not been to prison before, and because of his experiences there, I think an order should be made permitting parole after he has served half his sentence."

1. The amounts of cash found in the defendant's possession in Williamson totalled over $400,000. In the present case the appellant was found in possession of two lots of cash totalling only $35,000 and a "tick sheet" showing $40,000 owing to someone, perhaps the appellant, perhaps not. There was also evidence of unquantifiable, but one might imagine, a large number of sales. But, unlike Williamson, there was no evidence as to the extent of the appellant's profits. That said, the enormous potential value of the drugs that the appellant imported, in the order of $11 million, sets the appellant's case in a category of its own and begs the question of whether any previous sentence passed in this State for trafficking, including in Williamson which itself was a rare case, is reflective of an appropriate sentence in the present case.
2. Since Williamson there have only been four sentences in cases of trafficking in a controlled substance of more than three years' imprisonment. They are the last four matters listed in the table set out below. The table summarises a number of sentences of more than three years' imprisonment imposed in trafficking cases since 2003. It is apparent that the gravity of the appellant's crimes in the present case eclipses any of those listed. The enormity of the amount and value of the drugs imported by the appellant and intended for distribution is unparalleled.

Table of Sentences of Imprisonment for Trafficking in a Controlled Substance

Accused found with a considerable quantity of methylamphetamine and $17,677 and charged with trafficking. Whilst on bail was so found on 5 occasions. A commercial dealer on the streets.

Not eligible for parole until 2 years have been served.

Trafficked $150,000 worth of Ecstasy over an 11 month period during which he was charged, bailed, but continued the conduct. See Andrew Wisniewski

4 years' imp from 1/02/2006 - Appeal to CCA 23/04/07 [2007] TASSC 25 - Sentence quashed, re-sentenced to 4 years' imp from 1/02/06, not eligible for parole until he has served 2 years. Pecuniary penalty of $150,000 quashed, to pay the State $149,635

Not eligible for parole until 3 years served (see note re appeal)

Grew $275,000 cannabis over 2½ years with another man

Conviction; 3 yrs 6 mths' imp, one year suspended on condition commit no crime involving drugs for 3 yrs after release; money and items seized by police forfeited to Crown

Not eligible for parole until served 15 mths of sentence

Billinghurst and Jones were major suppliers of methylamphetamine trafficked over a 14 week period. Barrett was one of about three street dealers below them. See Garry Maxwell Billinghurst and Jamie Barrett 24 August 07

Not eligible for parole until 2 years, 3 months served

Billinghurst and Jones were major suppliers of methylamphetamine trafficked over a 14 week period. Barrett was one of about three street dealers below them. See Adam Arnold Jones and Jamie Barrett 24 August 07.

Street dealer in large methylamphetamine ring. He was selling about $3000 worth each weekend.

Not eligible to apply for parole until one year nine months of imprisonment has been served

Found in possession of $9,100 cash and methylamphetamine and ecstasy with a potential street value of over $600,000. Early plea of guilty but made few admissions & provided little information.

Not eligible for parole until served 18 months of this sentence

Two brothers found in possession of 48 kilograms of cannabis worth at least $300,000 to $400,000

Not eligible to apply for parole until 18 months of sentence has been served

Two brothers found in possession of 48 kilograms of cannabis worth at least $300,000 to $400,000

Not eligible to apply for parole until 18 months of sentence has been served

Sophisticated hydroponic production and sale of cannabis over a period of 2 years and 2 months by an experienced trafficker who had previously been in prison for trafficking

65 yo male acting as supplier & distributor. Large scale commercial drug trafficking operation. 36 ozs found in his possession and if on-sold by the defendant had a value of $128,000. Sold methylamphetamine in not less than 1-2oz lots. Late plea of guilty.

Not eligible to apply for parole until 18 months of sentence has been served

29 y/o on 2 counts. 4-methylmethcathinone. First bought from website, sold some himself and some to dealer. Then involved in importing bulk powder. 6kg. Street value $1.7m. Offending in 2009 - 2010.

Not eligible to apply for parole until 2 years of sentence has been served

Experienced drug trafficker found with 55g of crystal meth, 13g of heroin and $68,000 cash. Then with girlfriend tried to bring to Tasmania 321g crystal meth with potential street value in excess of $300k. See Christina Watson

Four and a half years imp to commence from 27 September 2014

Not eligible to apply for parole until 3 years of sentence has been served

3 family members pleaded guilty to trafficking. No relevant prior matters. One principal offender and other 2 in lesser roles. Offending ceased over 4 years before sentence. Sophisticated and commercial operation. Large amounts of methylamphetamine. Unexplained wealth declaration made - $700,000

4 years' imp. SEE COPS FOR EMMA SWAN AND BEVIN SWAN 22.2.16

1. There is also the additional factor in this case of the appellant's continued offending after having been charged and bailed. As Crawford J (as he then was) said in Wisniewski v Tasmania [2007] TASSC 25 at [10], such conduct is frequently regarded as a matter of aggravation as it shows utter contempt for the law and authority. It is certainly, in my view, a significant factor in determining the length of an appropriate sentence in the appellant's case, both because of the blatancy of the continued offending and its magnitude.

1. I think that it is readily apparent that longer sentences are imposed for trafficking in drugs in other Australian States more often than in Tasmania. Obviously there are more and more serious cases of trafficking in other States. It has been said though that the differing approaches taken in different jurisdictions might be explained by reference to the difference in the range of penalties: R v Michieletto [1995] TASSC 87 at [22]. That is something that can of course be taken into consideration. The maximum sentence for trafficking in Tasmania as provided for by the Misuse of Drugs Act 2001 is 21 years' imprisonment. It has also been said that the variations in sentences have been significantly unexplained: Dunford v The Queen [1995] TASSC 25, per Wright J at 1. In my view, that is a reason to look to sentences for like crimes in other States and not a reason not to.
2. The learned sentencing judge was referred to a number of interstate sentences by the Director of Public Prosecutions. In my view the most helpful of them was a decision of the Western Australian Court of Appeal in Seeto v Western Australia [2014] WASCA 221. I say helpful not only because the appellant was involved in the importation of a very large quantity of illegal drugs and continued to do so while on bail in respect of earlier charges of importation, but also because, in my observation, Western Australia, whilst having more cases of serious drug trafficking, is a State in many respects not unlike Tasmania in terms of sentencing trends generally in cases of serious crime.
3. Seeto is additionally helpful because it is a quite recent consideration of issues relevant to the present case, and because the Court of Appeal reviewed the sentences passed in Western Australia in a number of comparable cases in the four years prior to 2014.
4. The maximum penalty for the relevant offences in Seeto which were offences against the Misuse of Drugs Act 1981 (WA) was 25 years' imprisonment and or a $100,000 fine.

1. The following statement of the facts in Seeto is taken from [15]-[23] of the judgment of Hall JA, with whom Martin CJ and Mazza JA agreed:

"15 At 1.20 pm on Saturday 4 August 2012 police officers intercepted the appellant at the Perth domestic airport following his arrival on a flight from Sydney. As a result of searching the appellant and his vehicle the police located items which led them to a storage facility in Redcliffe.

16 A search warrant under the Misuse of Drugs Act 1981 (WA) was executed on the storage unit. Inside the unit a small toy panda bear was located which contained a number of packages. The contents of the packages were subsequently analysed and found to contain a total of 21.21 grams of methylamphetamine; 14.5 grams of the drug was at 79% purity, 6.27 grams was at 64% purity and the remainder was of undetermined purity. Other items indicative of drug dealing were also found, including two sets of scales, clip seal bags and a quantity of cutting agent. The possession of the drugs was the subject of count 2 of the indictment.

17 Also contained in the toy panda bear were nine tablets of MDMA weighing a total of 2.01 grams and another package containing 2.51 grams of cocaine at 10% purity. Possession of the MDMA was the subject of count 3 of the indictment and possession of the cocaine was the subject of count 4.

18 Police enquiries revealed that the storage unit had been rented by the appellant in the false name of Peter Chew. When searched at Perth airport the appellant had been found in possession of a New South Wales driver's licence in the name of Peter Chew. A subsequent examination of business records and CCTV footage established that the appellant had used the false drivers licence for identification purposes when renting the storage unit. The use of that false identification material to facilitate an offence was the subject of count 1 on the indictment.

19 The appellant was charged by way of summons with the offences the subject of counts 1 and 2. His first appearance in the Magistrates Court on those charges was 10 October 2012. At that time the proceedings were adjourned to 25 January 2013 and the appellant was bailed on a personal undertaking to appear on that date.

20 On or about 6 October 2012 the appellant recruited a man named Marcus Chapman to travel to Sydney and bring a quantity of methylamphetamine back to Perth. Chapman flew from Perth to Sydney on Saturday 6 October 2012. On arrival Chapman attended a meeting arranged by the appellant at which time he collected a package and had it strapped to his back. Later the same day Chapman returned to the Sydney airport and attempted to board a plane to Perth. He set off a metal detector as he passed through security and was stopped and searched. As a result the package, containing approximately 431.8 grams of methylamphetamine at 57.4% purity, was located. The appellant's conduct in relation to this transaction was the subject of count 5 of the indictment.

21 Sometime between 31 July 2012 and 15 November 2012 the appellant formed an agreement with Alex Mills and Penelope Hutchison that one of them would travel to Sydney and bring a quantity of methylamphetamine back to Perth. The amount was to be a pound or 454 grams. On 2 November 2012 Mills took Hutchison to the Perth domestic airport and handed her $19,000 in cash, which had been supplied by the appellant. Hutchison then flew to Sydney and met with the drug supplier. On considering the prospect of carrying a pound of methylamphetamine back to Perth Hutchison decided that it was too risky. She then returned to Perth without the drugs. The conspiracy to possess the drugs was the subject of count 6 of the indictment.

22 On 16 December 2012 the appellant travelled to Sydney to purchase a quantity of methylamphetamine. His intention was that the drugs would be brought back to Perth by another person. He entered into arrangements to purchase 279 grams of methylamphetamine. On 19 December 2012 the appellant met with Lloyd Jason Keith. He gave Keith the methylamphetamine and a quantity of cash to purchase an airline ticket. The appellant also instructed Keith as to where he was to take the drugs on arrival in Perth. Keith purchased an airline ticket and travelled to Perth on 20 December 2012. He was intercepted by police officers at the Perth domestic airport. He was found to be carrying 279 grams of methylamphetamine at 70% purity. The appellant's conduct relates to count 7 of the indictment.

23 Later on the morning of 20 December 2012 the appellant arrived in Perth on a flight from Melbourne. He was intercepted by police, searched and found to be in possession of a baggage ticket in the name of Tak Tan. Police located the item of luggage which matched this baggage ticket. When the bag was searched three small clip seal bags were located which contained a total of 1.78 grams of methylamphetamine of undetermined purity. This conduct is the subject of count 8 of the indictment."

1. The following account of the appellant's personal circumstances and the learned sentencing judge's sentence is again taken from the judgment of Hall JA at [25]-[30].

"[25] The appellant was aged 38 at the time of sentencing. He was born in Western Australia. He completed Year 11 at high school and then undertook an apprenticeship to become a chef. He has also completed a Diploma in Community Services at TAFE. He has undertaken youth work and worked in aged care and disability services in Broome. He was currently studying for a Diploma in Occupational Health and Safety.

[26] The appellant had one child by a former relationship. His son was 12 years old. The appellant has intermittent contact with him.

[27] The appellant started using cannabis when he was about 13 or 14 years of age and then progressed to amphetamine and ecstasy when he was about 18 years of age. Thereafter he used drugs on an 'on and off' basis. During 2012, when the offences occurred, he was a very heavy user of drugs.

[28] Whilst the appellant owned a lawn mowing franchise, it was conceded that during the time that the offences were committed he was also engaged in an illegal drug dealing business. It was also conceded on the appellant's behalf in the sentencing proceedings that, if not at the very top of the criminal enterprise, he was responsible for making significant decisions. He made the arrangements to bring the drugs to Western Australia and for them to be moved on once they had arrived. It was accepted that the purpose of bringing the drugs to that State was so that they could be on sold.

[29] The appellant had a significant criminal record. It commenced in 1995 with offences of possessing cannabis. In 1996 he was convicted of possessing amphetamines with intent to sell or supply and sentenced to two years' probation. That probation was later breached when he committed offences of burglary in 1998, for which he received terms of imprisonment. He received further terms of imprisonment in 2002 for drug, fraud and weapons offences. In 2003 he was sentenced to 18 months' imprisonment for possession of a prohibited drug with intent to sell or supply and was declared to be a drug trafficker. In 2008 he was sentenced to a total of two years' imprisonment for burglary, weapons and drugs offences.

[30] The State accepted that the pleas were relatively early and deserving of a significant discount."

1. The learned sentencing judge took into account the weight of the drugs, which in total was 1.1 kilograms, and the degree of purity, that ranged between 57.4% and 79%. His Honour said that purity and weight were not determinative of the seriousness of the offences, but were two relevant factors to be taken into account. His Honour concluded that the appellant was engaged in a commercial drug distribution business and was at the upper level in the chain of distribution.
2. His Honour referred to the maximum penalties, the need to ensure that any sentence was commensurate with the seriousness of the offences and the totality principle. He considered that it was appropriate to impose concurrent penalties for the offences comprising each incident. The effect of this would have been a head sentence of 19 years. He then considered whether any further reduction needed to be made to ensure that the total effective sentence was not disproportionate to the total offending and was not crushing. Having regard to the totality principle, he reduced the sentence he would otherwise have imposed to a total effective sentence of 15 years' imprisonment.
3. After considering sentences in a number of comparable cases Hall JA concluded at [76]-[77]:

"76 This serves to confirm that the total sentence imposed in this case was very significantly higher than sentences imposed in comparable cases. This suggests that despite saying that he had accorded a 20% discount on the sentence it is possible that his Honour may not in fact have done so. Whether or not that is what occurred, the total effective sentence imposed here is not merely high, it is inconsistent with standards of sentencing customarily observed in cases of this kind, as is evident from the cases to which I have referred, several of which also included the aggravating factor of offences committed whilst on bail.

77 In my view, the total effective sentence was disproportionate to the total offending and the ground of appeal has been made out. I would allow the appeal and resentence the appellant in a manner that produces a total effective sentence of 12 years' imprisonment."

1. Hall JA in his judgment at [44]-[56] reviewed a significant number of comparable sentences in Western Australia going back to 2010. His Honour wrote:

44 There are, of course, very many cases dealing with sentences imposed for drug offences. Many of them involve multiple offences. Comparisons can only be usefully made here with cases relating to methylamphetamines in similar quantities and where the offender had a similar role to that of the appellant. I have canvassed a number of such cases below. Whether or not the offender in each case pleaded guilty or was found guilty after trial is also noted.

45 In Atherton the offender was convicted after trial of nine counts of drug trafficking offences involving a total of approximately one kilogram of methylamphetamine (the majority of which was between 8% and 13% purity), one kilogram of MDMA (the majority of which was at 28% purity) and approximately 500 grams of cannabis. The wholesale value of the methylamphetamine was at least $175,000 and the wholesale value of the MDMA was between $84,000 and $120,000. Two of the offences were committed whilst the offender was on bail for the other offences. He was described as 'a commercial dealer, at the higher level, in prohibited drugs' (Buss JA [163]). In that case a State appeal against sentence was allowed and the total effective sentence of 8 years was increased to 11 years' imprisonment.

46 In Basilio v The State of Western Australia [2010] WASCA 202 the offender was convicted after trial of four drug trafficking offences. The first two offences involved attempts to obtain methylamphetamine. The first attempt related to the purchase of a quantity of methylamphetamine from a seller in Sydney for $187,000. The offender provided the cash to two couriers who flew to Sydney and obtained the drugs. They were intercepted by police on returning to Perth and found in possession of a total of 869 grams of methylamphetamine with a purity of between 55% and 59%. The second attempt related to 10 ounces of methylamphetamine. The seller was arrested by police and found in possession of 139 grams of methylamphetamine of between 34% and 37% purity. Shortly after the second attempt the police executed a search warrant and found the offender in possession of 17.7 grams of methylamphetamine at 39% to 58% purity, 6.86 grams of MDMA and scales, bags and cash indicative of drug dealing. The offender was described as being a 'commercial dealer at a high level' (Newnes JA [25]). A total sentence of 13 years' imprisonment was found to have infringed the totality principle and was reduced to 11 years on appeal.

47 In Fragomeni v The State of Western Australia [2011] WASCA 67 the offender was convicted after trial of two drug trafficking offences involving 859 grams of methylamphetamine at 14% to 18% purity. The drugs were found at the offender's home along with cash, a gun, scales and other items consistent with commercial dealing. The sentencing judge said that it was difficult to precisely place the offender in the hierarchy of distribution, but it was clear that he formed part of a commercial distribution enterprise. The offences were committed whilst the offender was on parole, he having been previously convicted of murder. A total effective sentence of 10 years' imprisonment was not disturbed on appeal.

48 In Galbraith v The State of Western Australia [2011] WASCA 70 the offender pleaded guilty and was sentenced to a total effective sentence of 10 years' imprisonment for one drug trafficking and seven other offences which, with one exception, were made concurrent. He also breached a suspended term of imprisonment and was required to serve that sentence. The offender was found in possession of a total of 971 grams of methylamphetamine of between 74% and 78% purity. A search of his home resulted in the finding of a 'tick list', cash, scales, cutting agent and clipseal bags consistent with drug dealing. The drug offence attracted a sentence of 9 years' imprisonment. An appeal against that part of the sentence was dismissed.

49 In Penney v The State of Western Australia [2011] WASCA 71 the offender pleaded guilty and was sentenced to a total effective sentence of 13 years' imprisonment for possession with intent to sell or supply of 3 kg of cocaine (at 65% purity) and 5.7 kg of methylamphetamine (at 10% to 12% purity) and other offences, including possession of $854,550 in cash reasonably suspected of having been unlawfully obtained. The offender was in a car driven from Sydney in which the drugs, concealed in scuba tanks, were located. A search of the offender's factory unit located items consistent with drug dealing as well as the cash. The sentencing judge found that the offender, whilst not a principal, was more than a 'mere courier'. The offender was a drug user but his primary motivation was commercial gain. An appeal against the total effective sentence was dismissed.

50 In Mikulic v The State of Western Australia [2011] WASCA 127 the offender pleaded guilty during his trial and was sentenced to a total effective sentence of 12 years' imprisonment for eight offences of possessing a variety of drugs with intent to sell or supply. The total amounts involved were approximately 12 kg of MDMA, 3.1 kg of methylamphetamine and 19.5 grams of cocaine. The methylamphetamine had a purity of between 23% and 26%. The bulk of the drugs were found in a car that had been driven from Sydney by the offender's brother. The offender's claim that he was a mere functionary in the plan of another was not accepted. The sentencing judge found that the offender planned, financed and facilitated the acquisition and transportation of the drugs. This was a large scale illegal commercial enterprise. An appeal against the total sentence was dismissed.

51 In Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218 the offender was sentenced to a total effective sentence of 13 years' imprisonment after trial for six drug trafficking offences involving 498.7 grams of methylamphetamine (at 47% to 52% purity) and 167 grams of heroin (at 64% to 66% purity). These quantities related to counts 1 and 2 of the indictment, which involved the procuring of another to bring drugs from Sydney. The other counts involved additional quantities of drugs that the offender attempted to obtain or offered for sale. The exact quantities were not known, but one of the offers was to sell an ounce of methylamphetamine and another was to sell an ounce of heroin. The sentencing judge found that the offender was a high level commercial dealer in different kinds of drugs. He placed her in the 'mid to upper level of the chain of distributors'. A co offender who had pleaded guilty and was less culpable (as the courier) had been sentenced to 7 years' imprisonment (_Pham v The State of Western Aus_tralia [2011] WASCA 244). An appeal against the total sentence of 13 years was dismissed. The sentence was described on appeal as long but was not disturbed.

52 In Kitis v The State of Western Australia [2013] WASCA 34 the offender entered late pleas of guilty to two drug trafficking offences relating to a total of about five kilograms of methylamphetamine and was sentenced to a total effective sentence of 12 years' imprisonment. The offences involved an attempt to obtain 4.983 kg of methylamphetamine that was concealed in a car that had been driven by another person from Sydney. The drugs had a purity of 53% to 69% and had a value of approximately $2.5 million. The offender took delivery of the car and removed a spare tyre which he believed contained the drugs (it had been substituted by police). A search of the offender's home resulted in the finding of another quantity of methylamphetamine, 207.6 grams at 22% purity, together with cash, a gun, two sets of scales and small quantities of other drugs. An appeal against the total sentence was dismissed.

53 In Ozan v The State of Western Australia [2013] WASCA 27 (a co offender of Kitis) the offender entered late pleas of guilty and was sentenced to a total effective sentence of 14 years' imprisonment for one count of supplying 2.6 kgs of methylamphetamine and one count of attempting to supply 5 kg of methylamphetamine. The offender procured a car in which 2.6 kg of methylamphetamine was transported from Sydney to Perth and then travelled to Perth separately to take delivery of the car. He was then involved in a second similar offence involving 5 kg of methylamphetamine. An appeal against the total sentence was dismissed.

54 In Ruvinovski v The State of Western Australia [2013] WASCA 204 the offenders were father and son who were convicted of an offence of conspiracy to sell or supply about 1.2 kgs of methylamphetamine. The father, who was convicted after he entered a late plea of guilty, had a significant criminal record including an earlier conviction for a serious drug offence. He received a sentence of 10 years' imprisonment. The son was convicted after trial and also had a criminal record. The offences were committed in the context of other shipments from New South Wales to Western Australia in which both offenders were involved. The son was sentenced to 8 years' imprisonment. Appeals against those sentences were dismissed.

55 In Neumann v The State of Western Australia [2013] WASCA 70 the offender was convicted after entering pleas of guilty to four drug trafficking offences. The offender was part of a criminal enterprise importing methylamphetamine from Sydney. At the time of his arrest the offender was found in possession of 860.9 grams of methylamphetamine at 46% to 75% purity. A further quantity of 394.6 grams at 22% to 24% purity was later also found, along with a gun, cash and scales indicative of drug dealing. He was charged with conspiracy to possess methylamphetamine with intent to sell or supply and two counts of possessing methylamphetamine with intent to sell or supply. The offender was released on bail and committed a further offence. He was found in possession of 18.2 grams of methylamphetamine at 22% purity, large amounts of cash and other items consistent with drug dealing. A loaded handgun was also located in the offender's car. His guilty pleas were not entered until after the matter was set down for trial. The offender had prior drug convictions and was at a high level in the chain of drug distribution. He made the executive decisions, and although a drug user, carried on a drug dealing business and derived substantial profits. An appeal against an aggregate term of 15 years' imprisonment was dismissed.

56 In Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 a total effective sentence of 17 years' imprisonment imposed following a trial was upheld on appeal. The offender was a co offender of Kitis and Ozan. He was convicted in respect of the two quantities referred to in the summary of Ozan. The offender was found to be at the top of the chain of distribution in Western Australia and was in charge of a significant commercial drug dealing enterprise. The offences were described as being at the top end of the range of seriousness for offences of their type. An appeal against the sentence was dismissed. The offender was the principle of the drug distribution organisation and organised the purchase of the drugs and transportation from New South Wales. The offences were considered to be close to the top of the range."

Was the appellant's sentence manifestly excessive?

1. I respectfully agree with the observation of Hall JA in Seeto that comparisons can only be usefully made with cases relating to similar drugs in similar quantities and where the offender had a similar role to that of the appellant. I also respectfully agree with the observation of Blow CJ in Williamson that because the facts of every case are different, the consideration of sentences imposed in other specific cases is of limited value. However just as Blow CJ noted, that nonetheless it was worthwhile surveying some of the heavier sentences that have been imposed in drug cases in Tasmania, I take the view that it is worthwhile, in this unprecedented case, to have regard in a general way to the sentencing practice in Western Australia to be derived from a review of the sentences imposed for serious drug trafficking in the cases canvassed by Hall JA in Seeto and from Seeto itself_._ In doing so I bear in mind the maximum sentence in Tasmania for trafficking in a controlled substance is, as can already be seen, approximately 20% lower than in Western Australia. That is to say 21 years' imprisonment as compared to 25 years.
2. From my own research I do not apprehend that a review of sentences for serious drug trafficking offences in any other Australian State or States or Territory or Territories is any more helpful in the present case than the review conducted by Hall JA in Seeto. The Victorian sentencing material provided by the appellant's counsel is useful, and while adding to my overall understanding of sentences for trafficking offences outside Tasmania, it does not alter my view of the sentence imposed by the learned sentencing judge. Indeed, the sentences imposed in Chandler and Paksov reinforce the view I have reached.
3. Most of the drugs imported in the cases reviewed in Seeto, and in that case, were quantities of methylamphetamine. Some cases involved MDMA as well. I do not see that there is any significant distinction for present purposes between methylamphetamine and amphetamine. As the learned sentencing judge said, taking up what was submitted to him by the Director of Public Prosecutions, without demur by the appellant's counsel:

"It is perhaps well-known, but it needs to be restated that amphetamine use in the community is extremely costly in human or personal terms, and in economic terms. The drug causes much disruption in the community. Addiction is a health issue. Addiction leads to the commission of crime for funding. Use of the drug is often responsible for violence, some of which is dealt with by the courts, some of which is unseen and undetected. Police and emergency service resources are often involved in dealing with the consequences of its use and abuse."

1. The range of sentences reviewed in Seeto was between 9 and 17 years' imprisonment. In Milenkovski v The State of Western Australia (above) the offender was found to be at the top of the chain of distribution in Western Australia and was in charge of a significant commercial drug dealing enterprise. The offences were described as being at the top end of the range of seriousness for offences of their type.
2. In the present case it is not suggested that the appellant was in charge of the overall drug dealing operation involved, or that he was at the top of the chain of distribution. He did however, as was observed by the learned sentencing judge, on any view of things, play "an important and significant role as organiser, collector, distributor and seller". He was involved in transferring sums of money overseas in a way that cannot, in my view, be described as unsophisticated. He was involved in the actual organisation of the importation of the drugs into Australia and subsequently into Tasmania, and he not only received drugs, but also sold drugs.
3. I accept the submissions made by the learned Director of Public Prosecutions, Mr Coates SC, that "the appellant's trafficking had the potential to result in untold deleterious consequences" and that the sheer value of the drugs involved, together with the cash found in the appellant's possession, and, I add, the amount recorded in the "tick sheet", evidenced an operation aimed at the generation of large profits, particularly when viewed against a background of a lack of evidence of personal drug use by the appellant.
4. It is convenient here, while considering the appellant's role, to observe that I do not find any comparison with the length of the sentence imposed by Mullins J in the Supreme Court of Queensland on Jyden Kirkpatrick on 3 November 2015 to be helpful. The total effective sentence imposed on him was ten years' imprisonment with a non-parole period of five years and six months. Neither Kirkpatrick's role nor the fact that he was also on bail for trafficking offences at the time of the relevant offending and had served a period of imprisonment for trafficking and assault, cause me to conclude that the appellant's sentence was unreasonable or plainly unjust. Indeed Mullins J distinguished Kirkpatrick's role from that of the appellant on the basis that Kirkpatrick's involvement was for a period of only two months. The appellant's trafficking took place over two periods totalling 19 months. Her Honour observed that Kirkpatrick would have a justified sense of grievance if he received a longer sentence than the appellant. In making these comments I do not lose sight of the fact that Fitzpatrick was sentenced under the Commonwealth sentencing regime relating to importation of illegal drugs; see R v Pham (2015) ALJR 13; [2015] HCA 39, and also that the maximum penalty for two of the counts against him was life imprisonment and for the third count was 25 years' imprisonment.
5. Returning to my consideration of the cases reviewed in Seeto, the amounts of the drugs imported by the appellant and intended for distribution were as large, if not larger than any of the Western Australian cases. The amount of drugs involved was apparently eclipsed by Ozan v The State of Western Australia (above) where the offender entered late pleas of guilty and was sentenced to a total effective sentence of 14 years' imprisonment for one count of supplying 2.6 kilograms of methylamphetamine and one count of attempting to supply 5 kilograms of methylamphetamine. Likewise, in Penney v The State of Western Australia (above), the offender pleaded guilty and was sentenced to a total effective sentence of 13 years' imprisonment for possession with intent to sell or supply 3 kilograms of cocaine (at 65% purity) and 5.7 kilograms of methylamphetamine (at 10% to 12% purity) and other offences, including possession of $854,550.
6. And at some $10.6 million, if not more, the potential monetary value of the drugs imported by the appellant was on a par with amounts that might be discernible in the Western Australian cases and more than most of them when the value of the MDMA in the present case is considered, in addition to the value of the amphetamine involved.
7. Finally, as in Seeto, the appellant continued to offend after he was detected and charged and bailed.
8. The offender in Seeto had significant prior convictions. However, as was noted in that case, that was not an aggravating feature but demonstrated that the offender's conduct was not mere aberrant behaviour. The appellant in the present case of course had no relevant prior convictions.

1. As I have already observed, the maximum penalty for the crime of trafficking pursuant to s 12(1) of the Misuse of Drugs Act is 21 years' imprisonment. It is trite to say that the maximum penalty is to be reserved for the very worst of cases. The appellant's offences might not be described as being at the top end of the range of seriousness for offences of their type, but they were, in my view, very substantially above mid-level and approaching the upper end of the range. It is possible of course to imagine more serious cases both in terms of the amount of drugs involved and the role of the trafficker.
2. Having regard to the Western Australian cases, and making due allowance for dissimilarities, including the relevant maximum penalties and the limitations arising from the fact that the circumstances of every case are different, I am wholly unable to say that there must have been some misapplication of principle by the learned sentencing judge in the present case. In my view the sentence makes adequate allowance for the mitigating circumstances pointed to by the appellant's counsel before this Court.
3. I have already said that I see the sentence as giving credit to the appellant for his pleas of guilty. I do not accept the submission made on behalf of the appellant that either the learned sentencing's judge's starting point must have been clearly disproportionate to the offending involved, or that he must have failed to give proper consideration to the plea of guilty entered by the appellant. There is of course no fixed discount or even a recognised range of discount observed by judges of this Court to reward an early plea of guilty by an accused person, and the case against the appellant was a strong one, in my view. In Director of Public Prosecutions v Harris [2013] TASCCA 5, whilst dissenting in the result, I noted uncontroversially at [41]:

"I digress to observe that, even were it otherwise and the early plea of guilty was born of nothing other than acceptance of the inevitable, it would nonetheless have had the effect of saving the State the expense and inconvenience of a trial and of saving the victims of the crime, particularly the employee who required additional counselling as a result of the crime, from any concern about having to give evidence. The relevance of those matters in the context of an overwhelming case was discussed by the English Court of Appeal (Criminal Division), in December last year, in R v Caley [2012] EWCA Crim 282 at [23] - [24] (see also the earlier case of R v Paul Wilson [2012] EWCA Crim 386 at [29]). In the criminal jurisdictions of England and Wales legislation requires courts to take into account the fact of a plea of guilty. Consequent moderation of any sentence is expressed as a quantified discount, based on a sliding scale dictated by the Sentencing Guidelines Council guidelines. The maximum discount for an early plea of guilty of about a one-third reduction in sentence drops only to a suggested reduction in the order of one-fifth, however overwhelming the evidence may be. It must however be noted that the English reduction principle derives from the effective administration of justice and not purely as an aspect of mitigation (see R v Caley (supra) at [4] and [13]). This Court held in Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 that a plea of guilty is a mitigating factor like any other and should not be assessed as a separate secondary process, or as justifying a specific quantified discount."

1. Taking account of each of the considerations relevant to sentencing generally, and considerations of general deterrence and denunciation in particular, and taking account of the matters specific to the appellant to which I have already referred, together with the fact that the penalty provided by Parliament for this offence evidences an intent that those who traffic in illegal drugs can expect long sentences in appropriate cases, the sentence of 12½ years' imprisonment with a non-parole period of 7 years is not, in my view, outside the range of sentences reasonably open to his Honour. The scale and duration of the trafficking, the value of the drugs involved and the appellant's role in the operation are all such as to merit a sentence of the order of that imposed by his Honour.
2. In my view the head sentence cannot be said to be unreasonable or plainly unjust and the 7 year non-parole period imposed was only 9 months longer than was required to be imposed in respect of the head sentence. Notwithstanding the length of the head sentence, the appellant's age, lack of relevant prior convictions, his prospects of rehabilitation and the fact that he had not been to prison before, a modest increase over the minimum non-parole period was appropriate, in my view, for the reason given by his Honour, namely the appellant's attitude to authority during the course of his criminal conduct impacted on the question of parole eligibility.
3. The sentence was a heavy one but it is trite to say that it is not enough on an appeal based on manifest excess to demonstrate that the sentence may have been harsh.

1. The appellant, Nicholas Stebbins, pleaded guilty to two counts of trafficking in a controlled substance contrary to the Misuse of Drugs Act 2001 ("the Act"), s 12(1). On 16 March 2015 he was sentenced by Porter J to imprisonment for 12½ years, with a non-parole period of 7 years. This appeal challenges the sentence on two grounds. Ground 1 asserts that the sentence is manifestly excessive. Ground 2, as amended, asserts that the sentencing judge "failed to give weight or gave insufficient weight to the early plea of guilty entered by the appellant".

1. The appellant faced two indictments. The indictments allege criminal conduct during two discrete periods, the second following soon after the first. One indictment concerns the 17-month period between 7 August 2012 and 15 January 2014. The other indictment concerns the period of about two months between 1 June 2014 and 28 July 2014.
2. In October 2013 Tasmania Police commenced an investigation into the activities of the Rebels Motor Cycle Club of which the appellant was a member. The investigation was conducted with the assistance of the Australian Federal Police and the Australian Customs and Border Protection Service. The investigation revealed that between August 2012 and January 2014 the appellant engaged in the importation and sale of controlled drugs. Between August 2012 and November 2013 he made 17 payments totalling $146,900 for the purchase of drugs from overseas to be delivered by post. Of that sum, $116,900 was paid to two Chinese companies and $30,000 was paid to Cryptospend. Cryptospend is an entity which sells Bitcoin, an online monetary device notoriously used for drug transactions in order to avoid financial reporting requirements. Between 14 July 2013 and 16 February 2014, seven parcels ordered and paid for by the appellant were intercepted by Customs or the police. The parcels were all addressed either to the appellant, his girlfriend, or an associate at addresses specified by the appellant in southern Tasmania. The parcels contained amphetamine, MDMA and cocaine. There was a total of 2.18kg of amphetamine. One parcel contained 1.78kg of amphetamine at 9.1% purity. Four other parcels of amphetamine each contained 100gm of the drug at various levels of purity up to 29%. One parcel contained one kilogram of MDMA at 64% purity. One parcel contained 25gm of cocaine at 50% purity. The amphetamine had, if sold without any reduction to its purity, a potential value of more than $1m. There was no information about the value of the cocaine. The MDMA had a potential value of between $300,000 and $500,000, and twice as much if its purity was cut to the level at which it is commonly sold.
3. During the period covered by this count, the appellant was also involved in the systematic sale and distribution of illicit drugs. On 15 January 2014 the police searched two addresses at Blackmans Bay where the appellant and his girlfriend lived. They found electronic scales, a vacuum seal, $18,360 in cash, a lap top computer, a phone, and a tick sheet disclosing that the appellant was owed more than $40,000 from eight different people for amphetamine sold on credit. The police also found two amounts of amphetamine with a total weight of 11gm, 73.7gm of ecstasy tablets and a small quantity of cannabis. At the other house the police found two sets of electronic scales, an iPad, a laptop computer and a phone.
4. After the searches, the appellant was interviewed by the police on 15 January 2014. He made no comment except to admit that some of the amphetamine found at one of the houses was his and claimed that it was for his personal use.
5. The phones seized by the police were examined. One was registered in the name of the appellant and one was registered in a false name. The phone contents, records associated with the phones, and telephone intercepts revealed the appellant's use of the phones to arrange the importation of amphetamine and MDMA, and the sale of amphetamine and cannabis. The phone intercepts revealed an intention to obtain amphetamine from overseas sources other than those to which the payments earlier referred to were made. The learned sentencing judge was given details of conversations between the appellant and others in November and December 2013 evidencing the actual sale of amphetamine and cannabis by him.
6. The appellant was again interviewed by the police on 12 February 2014. Again, he gave predominantly no comment answers. He was charged with trafficking and admitted to bail.
7. The appellant's criminal conduct continued. The second indictment concerns the period 1 June 2014 to 28 July 2014. The evidence of the appellant's conduct during that period comes from an investigation which commenced in about April 2014 by the Australian Crime Commission in conjunction with the Australian Federal Police, the Australian Customs and Border Protection Service and Tasmania Police. The investigation concerned importation of amphetamines from the United Kingdom into Tasmania via Queensland. The appellant was identified as a member of a group responsible for such importation. Apart from the appellant, the sentencing judge was told of the involvement of another man, Jyden Kirkpatrick, also a member of the Rebels Motor Cycle Club. Kirkpatrick lived in Queensland.
8. Working closely together by phone and text messages, Kirkpatrick and the appellant arranged for the importation of two parcels of drugs from suppliers in the United Kingdom with the intention that each parcel would be delivered to the appellant in Tasmania. Both packages were intercepted by the police prior to delivery. The first was seized on 23 June 2014 and contained 1.939kg of a damp white solid substance, 36.2% of which was amphetamine. The substance also contained caffeine. The second parcel was seized by the Customs service and given to the police on 25 July 2014. Its contents weighed 1.9765kg, 20.7% of which was amphetamine.
9. The sentencing judge was told that median purity at which amphetamine is typically sold is at about 6%, although the level of purity for street level sales may vary between 2% and 20%. Amphetamine is sold in various quantities. Sold as 0.1gm, called a "point", it returns $50. Larger quantities return progressively lesser prices by weight. For example, an ounce (28.35gm) may return between $3,000 and $5,000. Calculated on the basis of the highest return asserted by the Crown, that is, cut to a purity of 6% and sold in point quantities, the total potential street value of the two quantities of amphetamine seized in June and July 2014 exceeded $9 million.

1. I will deal with the second ground of appeal first, because my reasons for concluding that it should fail can be briefly stated. The first aspect of the ground asserts that the sentencing judge erred by failing to give any weight to the appellant's plea of guilty. However, the comments on passing sentence make clear that the assertion is not made out. His Honour did not erroneously discard the appellant's plea of guilty as an irrelevant consideration. His Honour said nothing to indicate that he did not take into account the appellant's plea of guilty. In his sentencing remarks he mentioned the pleas and noted that they were indicated at an "early stage" (although the respondent does not now accept that categorisation) and that the delay in final disposition of the sentence was caused by other factors. As to the second aspect of this ground, it cannot be said that his Honour failed to give sufficient weight to the plea of guilty unless the sentence is manifestly excessive taking into account all matters relevant to sentence: see, for example, the comments of Porter J in TAP v Tasmania [2014] TASCCA 5 at [30]. A plea of guilty is one of many relevant sentencing considerations, some of which are conflicting and contradictory, but all of which must be weighed by the sentencing court in determining the proper sentence to be imposed: Pavlic v The Queen [1995] TASSC 96; 5 Tas R 186; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. If the sentence is not manifestly excessive taking all such considerations into account, then his Honour did not fail to give sufficient weight to the plea of guilty.

1. I respectfully agree with and adopt Estcourt J's statement of the principles which limit the circumstances in which intervention of an appellate court is justified in appeals on the ground of manifest excess.
2. In his claim that the sentence imposed on him was manifestly excessive, the appellant relied on a number of particular matters:
   • the extent to which the sentence exceeds any sentence previously imposed in Tasmania for trafficking;
   • the nature and sophistication (or lack of it) of the trafficking enterprise and the appellant's role in it;
   • the mitigation which arises from the appellant's plea of guilty;
   • the appellant's age, lack of prior convictions and prospects of rehabilitation;
   • the non-parole period ordered was greater than the minimum.
3. Until the appellant was sentenced, the highest sentence imposed in this State for trafficking was imprisonment for five years. Reference was made to a number of past sentences, summarised by Estcourt J in his reasons. The substance of the appellant's submission is that, while there are aspects of the appellant's crimes which explain the departure from the range of sentences previously imposed, the extent of the departure is not justified by the circumstances of this case and is demonstrative of error.
4. Intervention of this Court is not justified unless "having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle": R v Pham [2015] HCA 39; (2015) 325 ALR 400 per French CJ, Keane and Nettle JJ at 406 [28]. As was stated by the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian at 371 [27], there is "no single correct sentence", and judges at first instance "are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies". Reasonable consistency in sentencing is a requirement of justice: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 per Gleeson CJ at 591 [7]. However consistency is not demonstrated by, and does not require "numerical equivalence", but rather, consistency in the application of the relevant legal principles: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 535 [48] and 535-536 [49]. As was recently explained by Wood J in Connelly v Tasmania [2015] TASCCA 15 at [5]:

"By considering the circumstances that have given rise to the sentence, unifying principles may be discerned. Previous sentences encapsulate the "accumulated wisdom and experience of first instance judges and appellate courts": Hili at [48]-[54], quoting Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [303]. Sometimes a history of sentences can establish a range of sentences. Even if there is an established range, that history does not mean that the range is the correct range, or that the upper or lower limits are the correct upper and lower limits: see Hili at [48]-[54], again quoting Simpson J in DPP (Cth) v De La Rosa at [303]-[304]."

1. The principles were relevantly restated by the High Court in Munda v Western Australia (2013) 249 CLR 600 at 615 [39], a case dealing with an asserted manifest inadequacy of sentence:

"It was acknowledged that such a disparity is one pointer towards inadequacy; but French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ expressly approved the statement of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa that previous sentences may be used to establish a range of sentences that have been imposed but not that the range is correct. In particular, the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence."

1. The term "traffic" has a broad meaning. It is defined in the Act, s 3. The definition is an inclusive definition, and so includes trafficking in the ordinary meaning of the term; that is, in simple terms, to play a commercial part in the process whereby a controlled drug gets from the manufacturer to the ultimate consumer: R v Holman [1982] VicRp 46; [1982] VR 471. The statutory definition covers a broad range of conduct:

"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. Because there are so many ways in which a person may be guilty of trafficking there is a great diversity of circumstances in which the crime is committed. The level of criminality in individual crimes varies widely, depending for example on the nature and quantity of the drug and the nature and level of the offender's involvement in its commercial distribution. That is one reason why there is no discernible sentencing range for the crime in Tasmania. Another reason that there is no discernible range of sentences for cases like this one is that such serious cases of trafficking have only rarely come before Tasmanian courts. In Director of Public Prosecutions v Williamson [2013] TASCCA 6 this Court dealt with an appeal against a sentence imposed for 11 drug-related charges including trafficking. Blow J (as he then was), with whom Tennent and Wood JJ agreed, said at [13]:

"By Tasmanian standards, this was an extremely serious case of drug trafficking. Trafficking on such a scale is so rare in this State that it cannot be said that there is a sentencing tariff for such cases. Because the facts of every case are different, the consideration of sentences imposed in other specific cases is of limited value."

1. Although Mr Williamson's case was described as "extremely serious" by Tasmanian standards, it was, in my view, far less serious than the crimes committed by the appellant. In his reasons for decision in this appeal, Estcourt J refers to sentences in this State in trafficking matters, including by reference to the survey conducted by Blow J in his reasons in Williamson. As to the Tasmanian cases, the position remains much the same as it was when this Court decided Williamson. There is insufficient information to indicate a pattern of sentencing for crimes of this nature.
2. Because of the absence of an established range for sentences for trafficking in Tasmania, it cannot be said that discrepancy between the sentence in this case and other sentences previously imposed in this jurisdiction leads to the conclusion that the sentencing judge fell into error. It is necessary to resort to matters of general principle in sentencing for serious drug trafficking cases, not just to a comparison with past Tasmanian sentences. The purpose of the Sentencing Act 1997 is set out in s 3. Relevantly, the purpose includes to:

(b) promote the protection of the community as a primary consideration in sentencing offenders; and

(c) promote consistency in the sentencing of offenders; and

(e) help prevent crime and promote respect for the law by allowing courts to -

(i) impose sentences aimed at deterring offenders and other persons from committing offences; and

(ii) impose sentences aimed at the rehabilitation of offenders; and

(iii) impose sentences that denounce the conduct of offenders; and

(h) recognise the interests of victims of offences."

1. These provisions, in a statutory form, allow a court to pursue the sentencing aims of protection of the community and victims of crime, denunciation and general and specific deterrence, as well as consistency of sentencing and rehabilitation of offenders. As I said recently in Sweetman v Tasmania [2016] TASCCA 5, those who traffic in illicit drugs should expect harsh punishment. It is a trade which causes misery to individuals and the people around them, and immeasurable harm to the community. Sometimes the damage is obvious, but it also often occurs in a way that is not readily apparent. Traffickers encourage and foster the abuse of drugs. Trafficking motivated by commercial gain involves greater criminality. The trade in and abuse of drugs, including amphetamine, generates other criminal activity, especially serious crimes of dishonesty and violence. As was pointed out by the sentencing judge, this Court frequently sees the criminal results of drug use. Like statements have been made by Australian courts for many years. In Clune [1989] VicRp 52; [1989] VR 567 at 576 the Victorian Court of Appeal said:

"This court has made it clear over recent years that persons detected in the business of trafficking in heroin can expect little mercy from the courts. Offenders play for high stakes. Such offences cause very considerable misery within the community. Persons detected in such offences who may be regarded as key figures in the drug industry deserve condign punishment."

1. More recently, the same court expressed similar sentiments in Mokbel v The Queen (2013) 40 VR 625 at 653 [108]:

"The sentences imposed had to be seen to reflect the community's abhorrence of trafficking in drugs, and the Court's denunciation of a person who, for reasons of sheer greed, was prepared - repeatedly and determinedly - to inflict untold harm on the community."

1. The importance of general deterrence and punishment as sentencing considerations in serious drug cases has been repeatedly emphasised by the High Court and intermediate courts of appeal in Australia. Sentencing courts are correct to give predominance to those factors in sentencing for this crime. In Wong, the High Court dealt with the federal offence of being knowingly concerned in the importation of heroin. At 607-608 [64] the plurality said:

"In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed." [Footnote removed.]

1. Those persons who may be inclined to engage in the commercial importation and sale of illicit drugs for profit, must balance the chance of high returns with knowledge that apprehension and conviction will result in sentences of "unequivocal severity": R v Tait (1979) 46 FLR 386 per Brennan, Deane and Gallop JJ at 399. As their Honours pointed out, the punishment imposed "must be calculated to protect society from the deliberate attack made on it". See also R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717. Similar principles, with which I respectfully agree, were expressed by the New South Wales Court of Criminal Appeal in R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 at 382-383 [286] and R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 at 552-553 [114].
2. Close attention is to be given to the scheme of the legislation and to the maximum available sentence for trafficking enacted by the legislature. The Act, according to the long title, is an Act to prohibit the misuse of drugs and activities associated with the misuse of drugs and for related purposes. The Act refers to a "controlled substance", which term includes a "controlled drug", a "controlled plant" and a "controlled precursor". Those terms refer to substances and plants specified in Sch 1 of the Act. Part 2 of the Schedule specifies 282 controlled drugs, including amphetamine (item 22), cocaine (item 67) and N,α-dimethyl-3,4-(methylenedioxy) phenylethylamine (MDMA or ecstasy) (item 177). Part 3 of the Schedule specifies controlled plants including cannabis. The Act creates and identifies offences arising from the possession, manufacture and sale of controlled substances. It divides the offences into major offences and minor offences. Major offences are indictable: s 5. Part 4 of the Act is entitled "Enforcement" and provides police officers with powers of search and seizure and to require information.
3. There are 11 major offences specified the Act. Trafficking in a controlled substance is a major offence: s 12. Others include, for example, manufacturing a controlled drug for sale, s 6, cultivating a controlled plant for sale, s 7, possessing a thing intended for use in manufacture of a controlled substance for sale, s 8, concealing property derived from a drug offence, s 16, and receiving property direct from a drug offence, s 17. For each major offence the Act provides for a maximum penalty of imprisonment for a term not exceeding 21 years. The penalty provisions for major offences are to be contrasted with the maximum penalty provisions for minor offences, which are either "a fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years" or a "fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years", depending on the offence. The Act contains provisions which facilitate the proof of crimes. For some of the controlled substances specified in the schedule, trafficable quantities are specified. If is it proved that an accused person prepared for supply, transported, guarded or concealed, possessed or imported a trafficable quantity of a controlled substance, then it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief specified in the definition of trafficking concerning the sale of the controlled substance required to constitute the offence: s 12(2).
4. The provisions of the Act which I have summarised evince a legislative intention to facilitate the investigation and proof of drug trafficking and to visit those found guilty of the crime with heavy penalties. The maximum penalty legislated in the Act carries considerable relevance because, unlike the catch-all maximum 21 year sentence provided by the Criminal Code, Parliament has specifically directed its attention to penalties for major offences.
5. The maximum available penalty provisions invite comparison with the worst possible case, and, taken and balanced with all other relevant factors, are an important yardstick for sentencing judges: Markarian at 372 [30]-[31]. It is not difficult to imagine worse cases of trafficking. However, in my assessment, the objective gravity of the appellant's crimes was high and the single sentence imposed on the appellant was only just over 60% of the maximum sentence available to the sentencing court on each count. The quantity and value of the drugs involved and the role of the appellant serve to differentiate his conduct from previous cases in this jurisdiction and which point to the need for a heavy sentence. His criminality is to be assessed by consideration of his involvement in the steps taken to effect the importation. In the case of the first indictment the appellant was the person primarily responsible for sourcing the drugs from overseas and arranging the importation. He used other persons and other addresses to facilitate the delivery of drugs to him. He actively searched for alternative sources. His activities involved numerous transactions and continued over a period of 17 months. As to the second count in the indictment, although it was Mr Kirkpatrick who had contact with the overseas suppliers, the amphetamine was destined for delivery to the appellant in Tasmania at addresses nominated and arranged by him. The appellant, through Mr Kirkpatrick, carefully monitored the progress of each shipment and took steps to minimise the risk of discovery. To attempt to avoid detection he requested Mr Kirkpatrick to arrange for delivery of the first shipment to Queensland rather than direct to Tasmania, only to be told by Mr Kirkpatrick that he did not have an available address. The second shipment was sent to Queensland for the same purpose. The addressee in Queensland was an associate of both Kirkpatrick and the appellant. After the parcel arrived Kirkpatrick sought instructions from the appellant about where it was to be sent in Tasmania.
6. The appellant's crimes were not motivated by addiction. Rather, they were for commercial gain. There was little evidence that the appellant derived financial benefit from the importation which was proportional to the value of the drugs imported. The cash in his possession and the debts disclosed on the tick sheet were modest by comparison. Nevertheless, according to the values given to the learned sentencing judge, and not challenged by the appellant, the potential gains were huge. The drugs were destined for the market. They were imported by the appellant for that purpose. There was room for doubt about the values asserted by the Crown because all or some of the drugs may have been sold in larger quantities at lower value per weight. However, on any view, the quantity and value of the drugs involved in the appellant's crimes was extremely large, and larger than in any previous Tasmanian case. He had, or had access to, the substantial sums he paid to obtain the drugs. It was not asserted by the Crown that the money paid by the appellant for drugs was his, or that other unknown associates may not have been involved in the importation and distribution of the drugs. The appellant's counsel submitted to the sentencing judge that the appellant was "part of a group, he is a player in that part but he is certainly not at the head of the chain of authority". The suggestion that there may have been some other mastermind is not to the point. There was no evidence about it and the full nature and extent of the enterprise did not emerge. The appellant was sentenced on the basis that he, in the words of the sentencing judge, "played an important and significant role as organiser, collector, distributor and seller". No challenge is made to that characterisation, although no categorisation was necessary. The sentencing judge correctly focussed on sentencing the appellant for what he had done: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 280 [21]. Shortly stated, the appellant was a knowing and willing participant, and played a key role in the importation into Tasmania from overseas of illicit drugs, across both counts, worth many millions of dollars. The potential value of the drugs destined for Tasmania was referred to by the sentencing judge to be in excess of $10.6m. The appellant's criminality is added to by his involvement in actual sales in Tasmania.
7. The appellant submits that his conduct was not "sophisticated". It was submitted that this was demonstrated by his use of his driver licence when attending the post office in person to transfer money, and his lack of effort to conceal his involvement in the transfers. One of the phones he used was in his own name. The level of planning and effort involved in a crime is relevant to sentence. Planning often makes offences difficult to detect, investigate and prosecute. The factors relied on by the respondent have some bearing on this, but are not of any great moment in considering the sentence. The investigation of the appellant's criminal conduct required the substantial allocation of resources from the investigating agencies at what must have been considerable public cost. Investigation of the appellant's conduct involved covert physical surveillance, thousands of communications intercepts, and of searches of people, vehicles and premises. As was pointed out in Wong, the difficulty of detecting, investigating and proving crimes such as these is a general consideration which indicates the need for sentences of deterrence. A lack of planning sometimes also points to a crime which is spontaneous, ill-conceived and lacking in insight. This is not conduct of that character. The appellant engaged in a deliberate, planned and systematic course of conduct over a prolonged period calculated to achieve his criminal purpose.
8. The appellant's criminal conduct involved a number of aggravating factors. The conduct which is the subject of the second count occurred after the appellant had been charged with, and was on bail for, the earlier crime. He continued with his crimes even though he was aware of the confiscation of earlier parcels and the investigation into his conduct. He took steps to attempt to avoid detection and subvert the efforts of the authorities to discover and prevent the continuing importation. He demonstrated contempt for the law and for authority and abused the freedom allowed by bail: Wisniewski v Tasmania [2007] TASSC 25 per Crawford J (as he then was) at [10]-[11], and the authorities there referred to.
9. The circumstances of the offender and the prospect of rehabilitation are also relevant sentencing considerations. The sentencing judge's detailed description of the appellant's personal circumstances is set out in the reasons of Estcourt J. When sentenced, the appellant was 26. His upbringing was largely unremarkable and there was nothing in his family, social or educational background which explained criminal conduct of this gravity. When younger, he had some relatively minor exposure to the use of drugs and realised he could make money from selling them. A report from a psychologist indicated that, before his arrest, the appellant assumed an "underworld" persona which was contrary to reality. His counsel disavowed any suggestion that the appellant's involvement in these crimes resulted from or was contributed to by fear or pressure from others. Although he had prior convictions for driving offences, dishonesty and destroying property, he had no record for drug-related offending of this type. He had not been to prison before. He had received two short wholly suspended sentences of imprisonment. One of those sentences was imposed by a magistrate for an unrelated driving offence, and was breached by the commission of these crimes. Since his incarceration he has been a model prisoner. He has participated in rehabilitation programmes in prison and says that he has cut ties with his criminal associates. He wishes to unite with his long term partner and has prospects of employment on release.
10. The appellant's counsel submits that the appellant's circumstances were a "key" matter in sentencing. However, the major sentencing considerations for trafficking for commercial gain are general deterrence and punishment. Matters personal to the offender, though not irrelevant, assume less importance in cases of this nature, particularly those involving importation: Ramos [2000] NSWCCA 189; (2000) 112 A Crim R 339; State of Western Australia v Atherton [2009] WASCA 148 at [125] (reported at [2009] WASCA 148; (2009) 197 A Crim R 119 but omitting the relevant passage); Okafor v The Queen [2007] NSWCCA 147 at [47]; Onuorah v The Queen [2009] NSWCCA 238; 76 NSWLR 1 at 13 [49].
11. Because there is no Tasmanian sentencing range for serious trafficking cases, counsel for the appellant and counsel for the respondent both made reference to sentencing cases from other Australian jurisdictions. The desirability of achieving consistency and uniformity in the context of sentencing across jurisdictions in federal matters was the subject of the decisions of the High Court in Wong, Hili and, most recently, Pham. In my view it is also appropriate, with care to identify and make allowance for relevant differences in legislation, maximum sentences and sentencing practice, to make use of the collective judicial experience reflected in decisions of courts of criminal appeal in other jurisdictions. The appellant could have been charged with a federal offence. Mr Kirkpatrick was charged with a federal offence and sentenced in Queensland. To my mind it would be contrary to principle to sentence the appellant differently just because he is to be sentenced for a State trafficking offence based largely on importation, the legislative meaning of which is importation into Tasmania, but for drugs also imported into Australia at his instigation. In his reasons, Estcourt J also refers to cases in other States, with particular reference to the recent decision of the Court of Appeal of Western Australia in Seeto v Western Australia [2014] WASCA 221. Counsel for the appellant also referred to the report of the Victorian Sentencing Advisory Council entitled Major Drug Offences Current Sentencing Practices which examines current sentencing practices in Victoria from 2008-2009 to 2012-2013 for major drug offences, including trafficking in a drug of dependence in a large commercial quantity and to the decision of the Victorian Court of Appeal in Chandler v The Queen [2010] VSCA 338. For the reasons expressed by Estcourt J, with which I respectfully agree, none of the materials referred to persuade me that the sentence under appeal was beyond the range of sentences reasonably open to the sentencing judge in this case.
12. I have also had regard to a series of decisions of the New South Wales Court of Criminal Appeal commencing with R v Lee [2007] NSWCCA 234, and later, R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106; R v Karan [2013] NSWCCA 53 and Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208. Those cases, and the comparative cases reviewed in them, deal with federal importation crimes. However, for the reasons I have already expressed, and with the necessary caution, they may also be used as a yardstick against which to judge the impugned sentence. Again, they do not suggest that the sentence is beyond the range of sentences open to the sentencing judge.
13. I also agree with Estcourt J that the sentence subsequently imposed on Mr Kirkpatrick by Mullins J in the Supreme Court of Queensland on 3 November 2015 does not point to error in the appellant's sentence.
14. The appellant contends that an important aspect of considering the sentence is his plea of guilty. Pleas of guilty should ordinarily attract a reduction in sentence: Ilic v Tasmania [2009] TASSC 94, 19 Tas R 201. It provides some indication of acceptance of responsibility. It sometimes indicates remorse. In this case the sentencing judge noted that the defendant "is put forward as a young man with clear remorse". His Honour did not make clear the extent to which he acted on the claim. I would refer to and adopt the remarks of Redlich JA and Curtain AJA in Phillips v The Queen [2012] VSCA 140; (2012) 37 VR 594, 222 A Crim R 149, that "the conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists". In this case, the appellant's conduct over time disclosed little claim to genuine remorse. However, mitigation also arises from the utilitarian benefit of a plea of guilty: Dennison v The State of Tasmania [2005] TASSC 54, 15 Tas R 50, per Slicer J at 54 [14]. That is so even if the case against an accused is strong and the plea "was born of nothing other than acceptance of the inevitable": Director of Public Prosecutions v Harris [2013] TASCCA 5, 22 Tas R 448, per Estcourt J at 458 [41]. Some debate arose about whether the appellant's plea of guilty is properly characterised as an early plea. In the circumstances of this case, it makes little difference. The result of the plea was the facilitation of the course of justice by avoiding the need for what may have been a long and costly trial. However, like Estcourt J, I have concluded that taking all matters into account, including the appellant's guilty plea, the sentence is not so harsh as to disclose error.
15. I agree, for the reasons given by Estcourt J, that the non-parole period imposed by the sentencing judge did not make the sentence manifestly excessive.

1. In my opinion neither ground of appeal is made out. I would dismiss the appeal.