Zarghami v The Queen [2020] VSCA 74

1 The applicant seeks leave to appeal the sentence imposed upon him with respect to the offence of trafficking in a drug of dependence (cocaine) by his Honour Judge Tinney in the County Court on 18 September 2019. On that day, the applicant was sentenced as follows:

Possession of document containing information about

s 71E of the Drugs Poisons and Controlled Substances

the Bail Act 1977

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed on charge 4 if the applicant had been convicted of this offence after a trial would have been four months' imprisonment, with two months' cumulation. The learned sentencing judge stated that the sentence he would have imposed on the related summary offence 5 if the applicant had been convicted of this offence would have been one month imprisonment, with two weeks' cumulation. The applicant would have become eligible for parole after serving two years and six months of the total sentence.

Forfeiture order, Disposal order and Forensic sample order.

2 The applicant seeks leave to appeal on the following grounds:[1]

(1) The sentencing judge failed to give any or sufficient weight to the applicant's offer to plead guilty to Charge 2 prior to the committal hearing.

(2) The sentencing judge erred in treating the fact that the applicant committed the trafficking offence whilst on bail as an aggravating factor when the applicant also fell to be specifically sentenced in respect of Summary Offence 5 (commit indictable offence whilst on bail).

(3) The sentencing judge erred in failing to give any weight to the applicant's remorse.

3 For the reasons set out below, we are satisfied that a specific error occurred in respect of the sentencing judge's treatment of the applicant's offer to plead guilty prior to trial. In essence, the applicant was entitled to the utilitarian benefit of this offer and was accorded no material benefit at all.

4 Accordingly, the sentencing discretion is reopened and in all the circumstances of the case we would sentence the applicant on Charge 2 to a base sentence of three years' imprisonment. We would not alter the sentences or cumulation imposed with respect to Charge 4 and related Summary Offence 5. The resultant total effective sentence is 3 years and one month imprisonment. We would fix a non-parole period of 18 months.

5 In order to explain the basis of our conclusions, it is necessary to consider the following matters:

• the nature of the offending;
• the history of the proceeding;
• specific aspects of the sentencing judge's reasoning which are the subject of challenge;
• the applicant's personal background and characteristics; and
• the sentence which should be adopted upon re-sentencing.

6 On 26 December 2017, a police officer intercepted the applicant as he drove out of Crown Casino car park in Southbank. The applicant was then 23 years old and employed in a family fast food business.

7 As part of a routine licence check the applicant was asked to produce his driver's licence. When the applicant opened his wallet it was observed to be bulging with cash.

8 Following a search of the applicant and his vehicle, the following items were found:

• an Apple iPhone (containing a document within the Notes app listing multiple names with figures beside each name) and a Blackberry mobile phone;

• a USB stick containing a PDF edition of an instructional publication on the manufacture of methylamphetamine;

• a Ripcurl backpack containing cash and several zip lock bags of white powder;

• a total of $108,296.15 in cash secreted in three different places.

9 Subsequent testing demonstrated that the total weight of the powder was 261.3 grams with 189 grams identified as pure cocaine. The quantity of mixed cocaine is approximately 87 times the minimum quantity of such drug classed as trafficable and 52.6 percent of a commercial quantity of such drug.[2]

10 The applicant was taken to the Melbourne West Police Station and presented with a search warrant requesting him to provide access to both mobile phones. He complied with respect to the iPhone but refused with respect to the Blackberry claiming that he did not know the PIN for it. He gave an explanation in this regard and otherwise gave a largely 'no comment' interview.

11 At the time of the offending, the applicant was on bail for four summary charges of drug possession.

12 The applicant was charged with the following indictable offences:

(1) Dealing in the proceeds of crime namely $108,296.15 cash (Charge 1).

(2) Trafficking in a drug of dependence, namely cocaine (Charge 2).

(3) Possession of a drug of dependence, namely cocaine (Charge 3).

(4) Possession of a document containing information about trafficking a drug of dependence (Charge 4).

(6) Refusing to comply with a lawful direction to provide information.

(c) Charge 3 being an alternative to Charge 2 was withdrawn following the conviction upon Charge 2.

(d) The applicant pleaded guilty to Charge 4 prior to the commencement of the trial.

(e) The applicant pleaded to Charge 5 after his conviction on two of the indictable offences, namely Charges 2 and 4.

(f) Charge 6 was remitted to the Magistrates' Court.

(g) Charge 7 was withdrawn following the verdicts upon the indictable offences.

14 At the first committal hearing, the applicant offered to plead guilty to Charge 2 (trafficking) and Charge 5 (commit indictable offence whilst on bail) on condition that the remaining charges were withdrawn. His offer was subsequently refused.

15 After the plea offer was refused, the applicant ran a contested committal hearing. At trial, he pleaded guilty to the possession of cocaine (Charge 3) and the possession of a document containing information about trafficking of a drug of dependence (Charge 4) but not guilty to Charges 1 and 2.

16 He contested the trafficking charge (Charge 2) (to which he had previously offered to plead guilty) by giving sworn evidence that the cocaine was for his own personal use. The sentencing judge described the basis of his defence as follows:

You gave evidence before the jury of your success as a gambler. You said that the money alleged by the prosecution to be the proceeds of crime in fact came from your great success at gambling, with those legitimately obtained funds having then been invested in cryptocurrency transactions. You told the jury that you had recently, prior to the point of apprehension, cashed out of those trades and that the money in the backpack related to those legitimately obtained and then retrieved funds. As to the drugs, you told the jury that you had never in the past purchased more than an ounce of cocaine. You described how your dealer was in urgent need of money and was heading overseas and that you decided to help him and yourself out by buying $50,000 of cocaine for the discounted price of $40,000. You told the jury it was all for personal use and that it was kept in the car to avoid the risk of your parents searching your room, finding the cocaine and disposing of it.

Now it was never disputed by the prosecution that you had been dealing in cryptocurrency or that there was some evidence of your gambling in the past. Nor was it in any way disputed by you that you possessed the money and the cocaine in the backpack. Rather the issue at trial was how those funds had been obtained by you, whether the jury could be satisfied beyond reasonable doubt that they were proceeds of crime, and satisfied beyond reasonable doubt as to your possessing the cocaine for the purposes of sale, which was the way the trafficking was put against you. You have been acquitted on the proceeds of crime charge. Given the verdict on the trafficking charge, plainly the jury were not impressed by your evidence in relation to your reasons for possessing the drug. They were satisfied beyond reasonable doubt that you possessed the cocaine for sale. I am not surprised. Your evidence was most unsatisfactory.[3]

17 On the sentencing hearing, it was submitted that the outcome resulted in a situation where the applicant had offered to plead guilty to 'most of what he has been convicted of'.

18 The sentencing judge accepted that the plea offer was a relevant consideration but ultimately determined that it was of very little value.

I don't know what to make of your offer to plead guilty to the trafficking. True it is you were acquitted on the proceeds of crime charge and had your offer been accepted and had there been no desire to proceed on the s.71E charge, there would have been no need for a trial at all. So I cannot just ignore the fact that you offered to plead guilty. But what weight do I give to it, if any? The trafficking charge was on the indictment. It did not lie on the indictment as some alternative charge for instance like a recklessly cause serious injury below an intentionally causing serious injury charge where understandably upon rejection of a plea offer to such a lesser alternative, the offer may not be maintained before the jury.

Here the trafficking was a charge you were prepared to plead guilty to in March 2018. The prosecution rejected the offer. There was no impediment to you pleading to it either before the jury or in their absence and having a trial purely on the proceeds of crime charge. No one compelled you to run a committal or to plead not guilty upon arraignment earlier this month. What you were doing was chancing your arm. In fact attempts were made to exclude the evidence of the search altogether. That application prior to empanelment failed. The trial then got under way. You got into the witness box and gave a thoroughly far-fetched account in relation to the drugs, the phone, the Blackberry and the reasons behind the possession. Your account of the possession of the Blackberry for instance was just ridiculous. You said it was not yours and that you had no PIN number. Yet it was a communications device resting in your pocket with your other communication device, your phone, as well as an amount of cash. Your account of being given the device, the Blackberry, by your dealer who was heading overseas made no sense at all.

Your account as to possessing the drugs for personal use was of course rejected by the jury. That was hardly surprising. What then do I take from your earlier plea offer in light of the way this case has panned out before the jury?

I cannot look at your past offer as demonstrating any current remorse at all or acceptance of responsibility given the more recent events at trial and pre-trial. You have no remorse at all and have denied any responsibility in relation to trafficking. Your account to the jury stands in stark contrast to the fact of your being prepared to admit your guilt in March 2018. Your earlier offer to plead is of very little value here.[4]

Proposed Ground 1 - failure to give any/sufficient weight to the applicant's offer to plead guilty to the trafficking charge

19 It is now submitted that the applicant was entitled to the full or at least some real benefit of the principle that where the ultimate conviction reflects a previously rejected plea offer, the offender should be accorded the discount which would have been available to him if a plea had been accepted.[5]

20 It is further submitted that the application of this principle must at a minimum reflect the lost utilitarian value of the offer.[6]

21 It is well accepted that there will be circumstances in which upon sentence an allowance is made for the utilitarian benefit of a rejected offer to plead made prior to trial. The relevant principles are stated in Carr v The Queen:[7]

Intermediate appellate courts in South Australia in R v Hansen and R v Franklin, in New South Wales in R v Oinonen and R v Cardoso and Queensland in R v Marshall have all recognised that a rejected offer to plead guilty to a lesser offence than that upon which the Crown has proceeded may also be considered to have a utilitarian value when the offender has ultimately been convicted of that lesser offence. The Court in R v Bartlett and Sherna v The Queen appears to have taken a similar view.

These decisions, which include the very recent decision of Franklin, provide sound reasons why in principle it can be authoritatively stated that there will be circumstances in which, in sentencing, an allowance for the utilitarian benefit of a rejected offer to plead guilty should be made. The reasons which underlie the granting of a discount for the utilitarian benefits of a guilty plea, discussed in the joint judgment in Phillips, are also relevant to a rejected offer to plead guilty to an offence of which the offender is ultimately convicted. The joint judgment in Phillips does not address all of the possible utilitarian benefits, 'notional' or otherwise, of a rejected offer to plead guilty and is not to be so understood.

22 The following circumstances support the conclusion that the applicant should be afforded a moderate discount for the offer to plead guilty to trafficking at an early stage of the proceeding.

(a) The offer to plead was conditioned upon the withdrawal of all other charges. It did not in strictness reflect the ultimate outcome of the proceeding because the applicant was convicted both of Charge 2 and Charge 4 (following a plea of guilty made after the rejection of the initial plea offer). Nonetheless, it is apparent that the plea offer was rejected essentially because the Crown was not prepared to withdraw Charge 1 (on which the applicant was ultimately acquitted). Further, the ultimate outcome may fairly be said to very substantially reflect the offer.

(b) The offer was not renewed when the applicant pleaded not guilty to Charge 2 at trial. It was, as the trial judge recognised, logically and forensically possible to have pleaded guilty to the trafficking charge and defended the proceeds of crime charge. The Crown would still have been faced with the same problems relating to the proceeds of crime charge deriving from the circumstances in which the applicant was arrested (leaving the casino) and his explanation for possession of the cash. In these circumstances, the costs and resources expended in the trial were to some substantial degree a consequence of the manner in which the applicant traversed his initial plea offer. Nonetheless, the acceptance of the plea offer would plainly enough have resulted in savings in court time and in some of the resources that were involved in the proof of the trafficking charge.

(c) There is a significant underlying public interest in encouraging appropriate pleas of guilty[8] which further supports recognition of the plea offer in the present case despite the complications referred to above. In Phillips v The Queen,[9] Redlich JA summarised this consideration in the following way:

A number of important features of our system of criminal justice underlie this sentencing principle. No accused person is obliged to plead guilty. Every accused is entitled to put the Crown to its proof. No accused is to be sentenced to a more severe penalty because they stood trial.[10] The orderly and effective administration of criminal justice depends upon a large proportion of accused persons pleading guilty.[11] Were it otherwise, the courts would be unable to provide justice within any tolerable time frame and injustice would be done to victims, witnesses, accused persons and the community generally. The public interest is always served where an offender pleads guilty, not the least because it provides for certainty of outcome and a resolution of the substantive issue.[12] A plea of guilty not only resolves the crime and releases investigators to other duties; resources are preserved for cases in which the guilt of the offender is really in issue. The plea vindicates public confidence in the legal processes established to protect the community, relieves the victims and witnesses of having to give evidence and provides some closure and vindication for victims of the crime.

(d) The weight to be given to the utilitarian value of an offer to plead guilty may vary greatly depending upon such factors as acknowledgment of guilt in circumstances where there is an arguable defence; the length and complexity of the trial sought to be avoided; the benefit of avoiding stress, anxiety and trauma to victims, witnesses and affected members of the community; and the freeing up of scarce resources, for example the expertise of specialist forensic witnesses and other considerations. It follows that there can be no standard weight to be attributed to the utilitarian benefit of an offer to plead guilty but there must be some material weight in cases where a utilitarian benefit requires acknowledgment if only because of the underlying public interest considerations referred to above.

(e) In the present case, as counsel for the respondent accepted, the judge accorded the applicant next to nothing by way of mitigatory weight for his offer to plead guilty to the trafficking charge. It is apparent from his Honour's reasons that this course flowed from the rejection of the proposition that the offer reflected remorse and acceptance of responsibility on the applicant's part. No specific consideration was expressed by the sentencing judge with respect to the question of utilitarian benefit.

23 Taken together, the above matters found the conclusion that the sentencing judge failed to give any or due weight to the utilitarian benefit of the offer to plead guilty in circumstances where he should have done so.

24 Accordingly, leave to appeal on proposed ground 1 should be granted, the appeal should be allowed and the sentence imposed on Charge 2 should be set aside.

25 In the course of his sentencing remarks, the sentencing judge made clear that the fact the offending occurred whilst the applicant was on bail for summary offences with respect to the possession of drugs of dependence was a matter of aggravation with respect to the trafficking charge.

26 The fact that the applicant also fell to be sentenced for the separate offence of commit indictable offence whilst on bail gave rise to a potential problem in terms of double sentencing.

27 In Pearce v The Queen, the High Court stated the common law position with respect to double punishment as follows:[13]

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.

28 In Loader v The Queen,[14] the applicant committed a series of indecent assaults and other related offences whilst the subject of successive Extended Supervision Orders ('ESOs') made under the Serious Sex Offender Monitoring Act 2005. The applicant fell to be sentenced both for the substantive indecent assault charges and for breaches of the relevant ESOs. Nettle JA stated the basic principles applicable in these circumstances:[15]

In my view, the argument is misplaced. The short answer to it is that the offences alleged in Charges SO1 and SO2 included elements in addition to the elements of the offences comprised in Counts 1, 2 and 4 to 9. There is no injustice in charging or convicting an offender of more than one offence committed in the course of the one episode of criminal behaviour if each offence is comprised of or includes different elements. As the Court said Pearce v The Queen:[16]

... To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.

Of course, as was also made clear in Pearce, to the extent that two or more offences are comprised of the same criminal behaviour, a sentencing judge must take care to modify the sentences imposed for each offence in order to avoid the offender being punished more than once for the same conduct. But that is a matter of sentencing. There is no double punishment in the fact of entering a conviction on each offence.

Certainly, to the extent of the overlap, the sentences imposed on the offences of failing to comply with conditions of the IESO and ESO must be moderated in accordance with Pearce.[18] But the offences of failing to comply with the conditions of the orders involved the added criminality of failing to comply with orders of the court. That warrants additional punishment.

30 In Lecornu v The Queen,[19] the Court was again confronted with an appellant who committed indictable offences related to child pornography whilst on an ESO. The Court affirmed the correctness of the decision in Loader after further considering s 51 of the Interpretation of Legislation Act 1984. Maxwell P (with whom Hollingworth and Cavanough AJJA agreed), said:[20]

L does not dispute that it was open to the sentencing judge in the present case to treat the existence of the ESO as an aggravating feature of the CP offence. The fact that L was subject to an ESO bore directly upon the gravity of the CP offence itself and, in particular, on the need for the sentence to ensure specific deterrence and protection of the community. It was also relevant to the assessment of CP's [scil L's] prospects of rehabilitation.

There is, in my view, a direct analogy with the case where an offender commits an offence while on parole or on bail. Those circumstances are conventionally treated by the sentencing court as aggravating the seriousness of the substantive offence. It is clear from her Honour's sentencing reasons that this is the approach she took. Dealing with the CP offences, her Honour said:

Of relevance ... were the circumstances in which your offending occurred. That is that you were at the time of your offending subject to an Extended Supervision Order, and with a troubling criminal record.

What could not be taken into account in sentencing for the CP offence was the distinct criminality involved in breaching the ESO, that is, failing to comply with an order of the Court made under the Monitoring Act. That separate element was not relevant to the CP offences. To have taken that matter into account in sentencing for the CP offence would have contravened the principle set down in R v Newman. That difficulty did not arise in Sessions.

The sentencing judge was entitled to impose punishment, including cumulation, on the breach count, reflecting the separate criminality involved in L's breaching of the court-imposed ESO. The rule against double punishment required, however, that no part of the sentence on the breach count should punish L a second time for the act of possessing child pornography.

32 These principles are applicable to the present case and, having regard to our conclusion with respect to ground 1, must be applied by us in considering the appropriate sentence to be imposed upon resentencing.

33 The judge did not treat the breach by the applicant of his bail as an aggravating factor. Rather, he correctly regarded the fact that the offending occurred while he was on bail was an aggravating factor. Further, the judge imposed a sentence of only 7 days on the commit indictable offence whilst on bail offence. This was consistent with the principles set out above. His Honour also observed that he would impose no cumulation with respect to this sentence having regard to considerations of double punishment.[22] The principles we have referred to did not require this course but it was a further measure taken by the judge to avoid imposition of double punishment.

(a) at trial the applicant pleaded to possession of the cocaine; and

(b) had previously offered to plead to the trafficking;

demonstrates that the applicant accepted responsibility for his actions.

36 We do not agree. In our view, the sentencing judge was entitled to regard the course taken by the applicant at trial in respect to the trafficking charge as demonstrating no real remorse with respect to that charge. As his Honour emphasised in the passages quoted above, the applicant did not simply change the plea he had previously offered but he contested the basis of that charge by way of evidence which the jury ultimately rejected.

37 Further, it may be noted that in any event despite his conclusion with respect to remorse the sentencing judge ultimately accepted the applicant had good prospects of rehabilitation.

38 We would refuse leave to appeal on proposed ground 3.

39 Given our conclusions with respect to ground 1, it is unnecessary to consider the question of manifest excess. We would refuse leave to appeal on proposed ground 4.

40 Before turning to the question of resentencing it is necessary to address the applicant's personal circumstances.

41 The applicant was born on 6 December 1994. He offended shortly after his 23rd birthday. He was born in southern Iran. His parents fled persecution in his homeland when the applicant was six or seven years of age, taking the applicant and his younger brother with them.

42 The family's journey to Australia was a difficult one involving transition through refugee camps, two dangerous boat voyages and a period in Woomera Immigration Reception and Processing Centre. As the sentencing judge accepted, this course of events was traumatic for the entire family and must have been deeply disturbing for the applicant.[23]

43 Upon release from Woomera, the family moved to Canberra and then Melbourne. The applicant had arrived in Australia speaking no English but adjusted well to school and went on to the University of Melbourne where he completed a commerce degree. His brother has also achieved well academically.

44 The applicant has had, and continues to have, strong family support from his parents and it is apparent that the family unit is a strong one.

45 On completing his degree, the applicant became involved in establishing a fast food business in Camberwell with the other members of his family and worked very long hours.

46 During this period he became increasingly involved with the use of drugs and gambling. As a result, his family became increasingly concerned about his lifestyle.

47 In 2015, he was referred by his general practitioner to a psychologist, Mr Barreiro, from whom a report was tendered describing the applicant's presentation and treatment history in 2015 and again after the offending in 2018.

48 The report is a careful and compelling account of the applicant's psychological history. From it, the following matters emerge:

• The applicant turned to avoidant behaviours and, in particular, gambling and the use of psychotropic drugs after a very close school friend committed suicide and a relationship with his then girlfriend broke down whilst the applicant was still at university.

• The applicant was supported by his family at that time and attended both his general practitioner and the psychologist for counselling. Nonetheless, his mental health did not stabilise.

• After completing his university degree, the applicant was confronted with new stressors when he became involved in the establishment of the fast food restaurant. He played a principal role in the management of the business and regularly worked 70 to 80 hours a week. His use of psychotropic substances increased and became strategic. He was using cocaine during the day to maintain his energy and using cannabis or ketamine to help him to sleep. He developed a strong dependence on these substances.

Unspecified Trauma- and Stressor-Related Disorder. The diagnostic profile of Mr. Zarghami is complex. It is the opinion of the writer that the psychological symptoms and maladaptive behaviours experienced by Mr Zarghami at the time of assessment were derived from the long period of exposure to traumatic events. These include elevated symptoms of trauma related anxiety, grief, depression and compulsive and maladaptive behaviours such [as] substance use and problem gambling.

The Unspecified Trauma- and Stressor-Related Disorder category applies when symptoms are characteristic of, but do not meet the full criteria for any of the disorders included in the trauma- and stressor-related disorders diagnostic category of the DSM-5 (Kurtz, 2013), (APA, 2013). Given the number of significant traumatic events that Mr Zarghami experienced early in his childhood Post Traumatic Stress Disorder was considered. However the symptoms did not meet the full criteria for this disorder neither in 2015 or 2018. It is very likely that following the time he was in a refugee camp in Indonesia, the voyage to Australia and later the months held at Woomera Immigration Reception and Processing Centre, young Emad, would have met the full criteria for PTSD. I do not believe that he was diagnosed or treated at the time.

It is not possible to attribute direct links between the series of traumatic events that Mr Zarghami experienced as a child and his criminal behaviour. Many people are traumatised and do not go on to commit crimes. He is well aware of right and wrong. Yet ultimately he lacked insight to manage his inner world. His actions have been driven by emotional avoidance and a need for achievement and success that represent compulsion rather than healthy drive. He risked his physical and mental health and ultimately his liberty to artificially maintain emotional equilibrium and success academically and in business. More importantly his actions have caused much heartache to his family. Something that is antithetical to the loving and protective son that he is.

In therapy Mr Zarghami has been authentic and forthright in owning his culpability. He never emphasised his trauma history nor used it as an excuse for his actions. His history was elicited during the assessment interviews. He has told it devoid of emotion and gravitas. Mr Zarghami has not expressed self-pity fear or sadness about his circumstances. Instead he feels fear and regret for the effect of his incarceration on his family both financially and emotionally. These reactions provide further evidence of the separation he has from feelings of vulnerability regarding his own welfare.

Mr Zarghami requires further psychological therapy. He needs to improve his insight into the impact of trauma on his emotional development in particular the impact of emotional avoidance. Furthermore he needs to develop his ability to contact, understand and regulate his emotions. He needs to live a more a balanced life. Given his age and history of substance use, relapse prevention will need to be to be monitored. Ultimately Mr Zarghami will need to develop a positive identity.

The prospect of rehabilitation and personal growth are good. He has many strengths. He is intelligent, capable and has a very strong work ethic. He has the capacity to take responsibility for his choices and behaviour. He is empathic and loving towards his family. In turn he has the full support of his family.

It is respectfully suggested that his psychological health and well-being be considered on sentencing. Incarceration is likely to have a lasting detrimental impact on his mental health and the development of a positive identity. Before he obtained bail, after his arrest, he re-experienced trauma related to the time he spend at Woomera. In jail the most likely response to the reactivation of trauma is a strengthening of maladaptive defence mechanisms, such as shutting down emotionally. Separation from his family is likely to disrupt the attachment to them and broaden his sense of alienation.

Mr. Zarghami has taken many steps to ensure that he doesn't reoffend. Given that he continues to receive psychological help I am positive about his ability to develop adequate skills to deal with life challenges without acting compulsively and or resorting to maladaptive dependency on psychotropic substances to cope emotionally and function physically.

53 As a result of convictions for possession of drugs of dependence, the applicant was placed into the Court Integrated Services Program ('CISP') in 2018. Evidence of his participation in that program and clear urine screen samples show that prior to sentence the subject of this appeal, he had made serious and successful efforts to control his drug use.

• the applicant had no prior criminal history;[24]
• the applicant developed inappropriate behaviours in the context identified by Mr Barreiro;[25]
• the applicant deeply regretted what he had put his parents through;[26]
• given his personal background and family situation the burden of custody would be increased;[27]
• the applicant had been drug-free and crime-free for a significant period at the date of sentence;[28]
• the applicant was a young man;[29]
• the applicant's prospects for rehabilitation were 'quite good'.[30]

55 We accept and endorse each of these conclusions.

56 The trafficking comprised in Charge 2 was serious. The quantity was substantial and it may be inferred (as was implicit in the applicant's own evidence) that its street value was high.

57 There is no suggestion the applicant was acting as a subsidiary for others and nothing to rebut the obvious conclusion from the cash in his possession that he was motivated by financial gain and not by some financial or other practical necessity.

58 It was also relevant that the applicant offended whilst on bail with respect to summary charges relating to the possession of drugs.

59 It is true, as the applicant submits, that he has not been convicted of more serious offences which the law recognises such as trafficking in a commercial quantity of drugs. Nonetheless, the maximum penalty which the legislature has fixed for trafficking simpliciter is 15 years' imprisonment denoting the seriousness with which it is to be regarded.

60 It is also true that because the trafficking was constituted by possession for sale on a single occasion there is no evidence of ongoing conduct. Nonetheless, the quantity seized on this particular occasion necessarily bespeaks serious offending.

61 The sentence we impose must result in just punishment and express the condemnation of the Court on behalf of the community with respect to offending of this kind.

62 Drug trafficking is pernicious. It is a form of criminal offending which appears to be easy and offers substantial financial rewards. It seeks to derive financial gain from the sale of a product to others which has the capacity to cause them serious physical and mental harm. It attacks the fabric of society and the framework of rules which forms the basis of a safe social environment within it.

63 These considerations mean that general deterrence must be given substantial weight in cases of this type.

64 There are however two significant matters mitigating the penalty which we would otherwise impose. The first is the applicant's offer to plead guilty which gives rise to a utilitarian benefit which must be recognised.

65 The second is the combination of the applicant's relative youth and his prospects of rehabilitation. At the time of the offending at the age of 23, the applicant had already demonstrated his intelligence and capacity for hard work both academically and in his family business. On the other hand, he had lapsed into maladaptive behaviours constituted by gambling, use of illicit drugs and drug trafficking. We accept the opinion of Mr Barreiro (as did the sentencing judge) that the applicant was vulnerable to stress as a young adult because of his experiences as a refugee.

66 Whilst this background does not excuse his behaviour, it substantially explains it.

67 At the time of sentencing, the applicant presented as a youthful offender:[31]

• who had received professional and insightful counselling with regard to his problems both before and after the offending;
• who had the continuing support of his family;
• who had successfully participated in the CISP program and demonstrated a capacity to remain free from both drugs and any further offending for an extended period of time;
• who was undoubtedly intelligent and capable of serious application to the resolution of challenges.

68 In turn, despite the fact that the applicant offended whilst on bail, the sentencing judge was correct to conclude that the applicant's prospects of rehabilitation were quite good.

69 To this may be added, for the reasons explained by Mr Barreiro, that it may be doubted that incarceration will assist his rehabilitation, and because of his background and family situation, custody will be more onerous for him than the average prisoner. Accordingly, the need for specific deterrence to be reflected in the sentence is moderated in this case although it must still be given some force.

70 Recognition of the importance of rehabilitation of a young prisoner is not simply the choice of a merciful outcome. It is in the interests of society as a whole that the applicant be rehabilitated and that the risk of further offending be minimised.

71 Having regard to the objective gravity of the offending and the matters personal to the offender which we have identified, we would re-sentence the applicant to three years' imprisonment upon Charge 2. We would not alter the orders for cumulation with respect to Charge 4 and Summary Offence 5. The resultant total effective sentence is three years and one month imprisonment. We would fix a non-parole period of 18 months. In our view, the applicant's prospects of rehabilitation and his need for rehabilitation in this particular case favour the provision of the potential for a longer period of parole than might ordinarily be the case.

72 We would grant leave to appeal on proposed ground 1 but refuse leave to appeal on proposed grounds 2, 3 and 4. We would re-sentence the applicant in the terms set out above.

[1] The grounds were amended during the course of the hearing of the application for leave to appeal.

[2] Schedule 11, pt 3 Drugs Poisons and Controlled Substances Act 1981.

[3] DPP v Zarghami [2019] VCC 1520, [9]-[10] ('Reasons').

[5] R v Heaney [1992] VicRp 85; [1992] 2 VR 531, 558; R v Ramage [2004] VSC 508, [44]; Sherna v The Queen [2011] VSCA 242, [18] (Ashley JA), [41] (Hansen JA), [88] (Whelan JA); Carr v The Queen [2012] VSCA 299, [70]; Kells v The Queen [2013] VSCA 7, [23].

[6] Anderson v The Queen (2013) 230 A Crim R 38, 43 [14]; Phillips v The Queen [2012] VSCA 140; (2012) 37 VR 594, 604-5 [36], 606-9 [43]-[52]; Carr v The Queen [2012] VSCA 299, [70].

[7] Carr v The Queen [2012] VSCA 299, [70] (citations omitted).

[8] Cameron v The Queen (2002) 209 CLR 339, 352 [42] (McHugh J), 357-61 [65]-[68] (Kirby J).

[9] [2012] VSCA 140; (2012) 37 VR 594, 605 [38] (citations in original).

[10] Cameron v The Queen (2002) 209 CLR 339, 351.

[11] Ibid 361: '[I]t is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt.'

[13] [1998] HCA 57; (1998) 194 CLR 610, 623 [40].

[14] [2011] VSCA 292; (2011) 33 VR 86 ('Loader').

[15] Ibid 92 [29]-[30] (citation in original) (emphasis added).

[16] [1998] HCA 57; (1998) 194 CLR 610, 621 [31] (citations omitted).

[17] Loader [2011] VSCA 292; (2011) 33 VR 86, 97 [54] (citation in original).

[18] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623-4; R v Wei Tang [2009] VSCA 182; (2009) 23 VR 332, 338 [28].

[19] [2012] VSCA 137; (2012) 36 VR 382. Relevantly followed in Price v The Queen (No 2) [2019] VSCA 44; Woods v The Queen [2017] VSCA 34; Beqiri v The Queen [2013] VSCA 39; (2013) 37 VR 219.

[20] Ibid 390-1 [30]-[32] (citations omitted).

[31] R v Mills (1998) 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43.