SENTENCING ERROR - Sentencing judge erred by misreading sentence to be imposed on count 1 and mistakenly failing to impose sentence on counts 7 and 8 - Sentencing judge sought to correct errors by re-calling matter and re-sentencing applicant - Re-sentencing not carried out within 14 days as required by s 104A of the Sentencing Act 1991 - Sentencing judge functus officio - Concession by Crown that applicant to be re-sentenced - Application for leave to appeal granted and appeal allowed.

1 I will ask Weinberg JA to deliver the first judgment.

2 On 8 May 2009, the applicant, Yassin Tarakci, pleaded guilty in the County Court at Melbourne to three counts of trafficking in a drug of dependence, namely methylamphetamine and MDMA (counts 1, 7 and 8), two counts of possessing an unregistered hand gun (counts 2 and 3), three counts of possessing a drug of dependence, namely Alprazolam and MDMA (counts 4, 5 and 9), and two counts of dealing with the proceeds of crime (counts 6 and 10). He further pleaded guilty to eight summary charges. These included possessing a controlled weapon (a knife) without lawful excuse (charge 11), and seven counts of possessing a prohibited weapon without an exemption or approval, namely, capsicum spray, two flick knives, two extendable batons and two sets of knuckle-dusters (charges 5, 7, 8, 15, 16, 17 and 18).

3 The applicant was initially sentenced on 4 June 2009. However, his Honour misread count 7 as count 1, and then failed to announce a sentence for counts 7 and 8. The Court was reconvened on 29 June 2009 and the applicant was then sentenced as follows:

4 The applicant now appeals against the individual sentences imposed in respect of counts 1, 7 and 8, as well as the total effective sentence and the non-parole period.

5 On 19 April 2008, the applicant was seated in the passenger seat of a car in Queen Street, Melbourne. Police approached the vehicle and conducted a search. They found a bag on the floor where the applicant had been sitting. The bag contained capsicum spray (charge 5), approximately $9,500 cash (count 6), ten Alprazolam tablets (commonly known as 'Xanax') (count 4), a pocket knife (charge 11), digital scales, a precursor substance to GHB, as well as other drug paraphernalia. The applicant admitted ownership of those items.

6 The applicant was arrested. A further search was conducted of the vehicle. More drug paraphernalia was located. An application was granted for a full-body search, at which time the applicant produced a bag containing methylamphetamine from his underpants.

7 The applicant was interviewed by police and made full admissions to trafficking in methylamphetamine to three individuals in the previous 24 hours (count 1) and possession of MDMA (commonly known as 'Ecstasy') (count 5). He was bailed to 17 June 2008.

8 On 31 May 2008, the police became aware that the applicant and a co-accused, Carter Pollard, had taken rooms at Rydges Hotel in Exhibition Street, Melbourne. The applicant occupied room 604, and Pollard room 1612. Pollard was the applicant's source of supply and, together, they were conducting their trafficking enterprise from the hotel.

9 The applicant left the hotel in the early hours of the morning of 1 June 2008. Shortly thereafter he was arrested. He was in possession of a small amount of Crystal Methylamphetamine (commonly known as 'Ice'), ten Ecstasy tablets (count 8), approximately $3,950 cash (count 10), one Xanax tablet (count 9), knuckle-dusters (charge 7), a flick knife (charge 8), mobile phones and a 'crack pipe'.

10 Search warrants were then executed at the hotel. Police located drug paraphernalia in room 604, including deal bags, digital scales, a syringe and 'crack pipes'. The applicant was then interviewed by the police. He admitted to possessing and using methylamphetamine and MDMA, but denied trafficking.

11 On 5 June 2008, police executed a search warrant at the applicant's home in Roxburgh Park. Two imitation handguns were found (counts 2 and 3), as well as two extendable batons (charges 16 and 17), another set of knuckle dusters (charge 18) and another flick knife (charge 15).

12 Throughout the months leading up to his arrest, the applicant and Pollard had been checking into various inner-city hotels together for the purpose of securing 'safe houses' to store drugs prior to distribution. They would either go into the central business district in order to meet and supply their customers, or their customers would come to them. The applicant usually purchased substances from Pollard in half ounce to one ounce lots, although at times it was as much as four ounces. In general terms, the applicant purchased, and trafficked, 432 grams of amphetamine-type substances between 20 April and 1 June 2008 (count 7).

13 The applicant was 21 at the time of the offending. He came from a hard-working, supportive family, and had been in full-time employment from the time he left high school. He had developed an amphetamine habit and turned to trafficking to support that habit. He has since achieved abstinence from drugs. He is now in a serious and supportive relationship with Jacqueline Smith, who is his wife by Muslim rite.

14 By Notice of Appeal, filed on 15 June 2009, the applicant relied upon one ground of appeal, namely, that the sentencing judge erred in failing to impose sufficiently disparate sentences as between the applicant and the co-accused, Carter Pollard.

15 At the time that ground was filed, Pollard had been sentenced to four years and two months' imprisonment with a non-parole period of three years in respect of trafficking some 2.5 kilograms of methylamphetamine over a three month period.

16 The submissions on behalf of the applicant contrasted the sentences imposed on him for counts 1, 7 and 8, with the sentence imposed on Pollard for count 1 in his matter (four years' imprisonment). Counsel for the applicant pointed to a number of differences in the offending. Pollard had been sentenced on count 1 for trafficking in a large commercial quantity of methylamphetamine (2.5 kilograms). The maximum penalty was life imprisonment. The offending was alleged to have taken place between 1 March and 1 June 2008. Moreover, Pollard was sentenced as the supplier of drugs to the applicant.

17 Counsel for the applicant submitted that, in contrast, the applicant was sentenced on count 1 to 18 months' imprisonment for trafficking in methylamphetamine (a total amount of 7.5 grams). The maximum penalty was 15 years' imprisonment. The offending was alleged to have taken place over a 24 hour period on 18 April 2008. The applicant was sentenced on count 7 to 39 months' imprisonment for trafficking in methylamphetamine (a total amount of 432 grams). The offending was alleged to have taken place between 20 April and 1 June 2008. The applicant was further sentenced to 18 months' imprisonment for trafficking in MDMA (a total amount of 3.2 grams). The offending was alleged to have occurred on 1 June 2008.

18 The applicant was sentenced on the basis that he trafficked the drugs to a street level user base. All three sentences were to be served concurrently. In other words, the applicant was sentenced to a total of three years and three months' imprisonment, effective, for trafficking in about one fifth of the amount that Pollard had trafficked, while Pollard had received only four years' imprisonment for that significantly more culpable offending.

19 The applicant submitted that there were some similarities between the two offenders. They both pleaded guilty at an early stage, and both re-offended following the commission of these counts. Nonetheless, it was submitted that the similarities could not overcome the lack of disparity in the respective sentences imposed.

20 Counsel submitted that the vast differences in the maximum penalties available for Pollard in relation to his trafficking, and the penalties available in relation to the applicant, as well as the differences in both the period and scale of offending demanded greater disparity in the sentences imposed.[1]

21 Counsel acknowledged that count 7 was clearly the most serious count so far as the applicant was concerned. However, it was submitted that the sentencing judge had erred in imposing only a nine month differential between the sentence imposed on that count, and that imposed on Pollard in respect of the count of trafficking. Counsel submitted that there was a failure to recognise the differences in maximum penalties, the differences in the scale of offending and the differences in the amounts actually trafficked.[2]

22 Counsel for the applicant submitted that the s 6AAA declaration made by the sentencing judge may provide some insight into the lack of disparity. Pollard was given a discount of 22 months for his plea of guilty, whereas the applicant was given a discount of only six months.

23 The Crown conceded that, if Pollard's sentence were to be upheld as being within the acceptable range, then the sentence imposed on the applicant was not sufficiently disparate. However, the Crown maintained that Pollard's sentence was manifestly inadequate and that it should be increased. It had appealed that sentence on that basis. It submitted that if that appeal should be successful, then disparity would no longer be an issue.

24 Having regard to the fact that the Director's appeal against the sentence imposed upon Pollard has, this day, succeeded, there is nothing left of the disparity ground, at least in relation to the total effective sentence. Pollard now faces a head sentence of five years and six months' imprisonment on the count of trafficking, and a total effective sentence of five years and eight months' imprisonment. That is sufficiently disparate from the sentence imposed upon the applicant to allow both sentences to stand.

25 On the other hand, the re-sentencing process carried out by the sentencing judge clearly miscarried. If the learned sentencing judge was to correct the sentence which he erroneously imposed on 4 June 2009 under the statutory version of the slip rule, he could only do so within the 14 day period stipulated by s 104A of the Sentencing Act 1991 (Vic). He could not do so after the expiration of that period. Apart from that section, his Honour was, in my opinion, functus officio.

26 It falls to this Court to correct the sentences imposed. That means the sentencing discretion has been reopened. There is room, upon a re-sentencing exercise, for some moderation of the total effective sentence and the non-parole period. I would propose that the Court reimpose each of the individual sentences fixed below, but vary the orders as to cumulation so that one month of the sentence on count 2, one month of the sentence on count 3 and one month of the sentence on count 6 be served cumulatively upon each other and upon count 7. That would leave a total effective sentence of 42 months' imprisonment. I would fix a non-parole period of 27 months.

27 I should say that, but for the applicant's plea of guilty, I would have imposed a total effective sentence of five years' imprisonment with a non-parole period of three years.

1. The application for leave to appeal against sentence is granted.

2. The sentence passed below is set aside and in lieu thereof the applicant is sentenced to be imprisoned for a term of 18 months on each of counts 1 and 8, for a term of nine months on each of counts 2 and 3, for a term of six months of each of counts 4, 5, 6 and 10 and each of the summary offences, for a term of three months on count 9 and for a term of three years and three months on count 7. One month of each of the sentences on counts 2, 3 and 6 are to be cumulated upon each other and upon the sentence on count 7. The total effective sentence is 42 months imprisonment. It is ordered that the applicant is to serve a minimum term of 27 months' imprisonment before he is to be eligible for parole.

31 The orders made below for the taking of a forensic sample, disposal and forfeiture are confirmed.

32 It is declared that a period of 505 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

[1] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301.

[2] R v Pidoto [2006] VSCA 185; (2006) 14 VR 269, 278.