55. Drug Offences — Sentencing (Vic & Cth)¶
Scope and currency
Cheat sheet · Sentencing Act 1991 (Vic) ss 5(2A), 6B–6E, 9(1A), 89DI, Sch 1 cl 4 · Confiscation Act 1997 (Vic) s 3(1) · Drugs, Poisons and Controlled Substances Act 1981 (Vic) · Crimes Act 1914 (Cth) Pt IB ss 16A–16B · Criminal Code (Cth) Pt 9.1
There is no single class of "serious drug offence" — there are three regimes, and they do different work. In Victoria the phrase carries two distinct statutory meanings: the Confiscation Act s 3(1) definition, which drives the mandatory s 89DI declaration and automatic forfeiture; and the Sch 1 cl 4 "drug offence" list, which drives the Part 2A serious drug offender sentencing regime. Federally, Pt 9.1 of the Criminal Code defines the offences and Pt IB / s 16A of the Crimes Act 1914 governs the sentence — with no serious-offender scheme at all (McKenzie v The Queen VSCA 34). Run the routing first, then the gravity assessment.
The three regimes — orientation¶
| Regime | Defining provision | Trigger | What it does |
|---|---|---|---|
| Vic — confiscation | Confiscation Act 1997 (Vic) s 3(1) "serious drug offence" | Conviction for a listed DPCSA indictable offence | Mandatory s 89DI declaration → automatic forfeiture (Div 4, Pt 3) → s 5(2A)(f) bars regard to it in mitigation |
| Vic — Part 2A | Sentencing Act 1991 (Vic) s 6B(2) + Sch 1, cl 4 "drug offence" | Conviction and a sentence of imprisonment / YJC detention (not a young offender) | Serious drug offender status → s 6D community protection primary → s 6E cumulation → s 9(1A)(a) no aggregate |
| Cth — Part 9.1 | Criminal Code Act 1995 (Cth) Pt 9.1; "serious drug" s 300.2 | Charge under Div 302 / 305 / 306 / 307 / 309 | Maximum penalty driven by quantity; sentence governed by Pt IB, s 16A Crimes Act 1914 — no serious-offender regime |
The decision sequence¶
GATE 1 State or Commonwealth?
Which Act creates the offence being sentenced? → Victorian (DPCSA 1981): run Gate 2 (confiscation) and Gate 3 (Part 2A) — they are separate enquiries with different offence lists, and both can bite on the same conviction. → Commonwealth (Criminal Code Pt 9.1): go to Gate 5. Part 2A does not apply to Commonwealth offences and there is no equivalent federal scheme (McKenzie v The Queen VSCA 34). → Mixed State and Commonwealth: sentence the federal counts under Pt IB Crimes Act 1914 — federal statutory directions apply to the exclusion of inconsistent State sentencing provisions. Review the aggregate for totality under s 16B (Postiglione v The Queen (1997) 189 CLR 295; Mill v The Queen (1988) 166 CLR 59).
GATE 2 Is it a 'serious drug offence'? — Confiscation Act 1997 (Vic) s 3(1)
Is the conviction on the s 3(1) list? The s 3(1) list is narrower than Sch 1 cl 4 and does not require any sentence of imprisonment. Conviction alone is the trigger. → On the list: s 71 (trafficking, large commercial quantity); s 71AA (trafficking, commercial quantity); s 71AB (trafficking to a child); s 71AC (trafficking a drug of dependence); s 72 (cultivation, large commercial quantity); s 72A (cultivation, commercial quantity); and s 79(1) conspiracy or s 80(1) aiding and abetting where it relates to a commercial or large commercial trafficking or cultivation offence above. → Consequence — mandatory: on conviction by any court, the court must make a s 89DI(1) order declaring the person a serious drug offender. There is no discretion once the conviction is recorded. → Consequence — proprietary: the declaration triggers automatic forfeiture of almost all the offender's property under Div 4 of Pt 3, Confiscation Act 1997 — regardless of any connection to the offending.
GATE 3 Is it a Part 2A 'drug offence'? — Sentencing Act 1991 s 6B(2), Sch 1 cl 4
Listed offence AND a term of imprisonment or YJC detention? Both limbs are required, and the offender must not be a young offender. Note the list differs from s 3(1): it captures attempts and certain Commonwealth convictions, but does not include s 71AB or s 71AC. → Sch 1 cl 4 offences: s 71 (trafficking, large commercial quantity); s 71AA(1) or s 71AA(2) (trafficking, commercial quantity); s 72 (cultivation, large commercial quantity); s 72A (cultivation, commercial quantity); conspiracy to commit any of the above (s 79(1) or s 80(3)(a)); aiding, abetting, counselling, procuring, soliciting or inciting any of the above (s 80(1) or s 80(3)(b)); and attempting any of the above (cl 4(ac)). → Commonwealth qualifying convictions — cl 4(ba): prior convictions for ss 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 Criminal Code (Cth) can operate as qualifying convictions to trigger Part 2A if the offender subsequently commits a Victorian Sch 1 drug offence (McKenzie v The Queen VSCA 34). → Both limbs met: the offender is a serious drug offender → Gate 4. The court must record that fact in its records.
GATE 4 The Part 2A consequences — what changes
Three statutory modifications to orthodox sentencing. 1 · s 6D — community protection is the primary purpose. Under s 6D(a) the court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed (R v Fuller-Cust (2002) 6 VR 496; Underwood (A Pseudonym) v The Queen (No 2) VSCA 87). Under s 6D(b), to achieve that purpose the court may impose a sentence longer than is proportionate to the objective gravity of the offence — a statutory power that directly overrides Veen v The Queen [No 2] (1988) 164 CLR 465. The s 6D(b) discretion is closely guarded. The court must be satisfied beyond reasonable doubt that the offender will remain a danger to the community beyond the term of a proportionate sentence before invoking it (R v Prowse VSCA 287). Where the risk of re-offending is low, community protection weighs less heavily and a disproportionate sentence is unjustified (Boulton v The Queen (2014) 46 VR 308; [2014] VSCA 342; Brown v The Queen [2020] VSCA 212). Invoking s 6D(b) typically produces an increased gap between head sentence and non-parole period. 2 · s 6E — presumption of cumulation. Every term of imprisonment imposed on a serious offender for a relevant offence must be served cumulatively on any other uncompleted sentence, unless the court otherwise directs (ss 6E, 16). The saving preserves the discretion: exceptional circumstances are not required to order concurrency or partial concurrency (R v Milne (1995) 78 A Crim R 133 at 139). Totality survives s 6E. The court must still stand back and ensure the total effective sentence is not "crushing" (Newton v The Queen VSCA 207, citing Zhao v The Queen VSCA 267; see also Bogdanovich v The Queen VSCA 388). Totality remains the overriding constraint — the ultimate aggregate must be proportionate to the total criminality (DPP v Marino VSCA 133; Mill v The Queen (1988) 166 CLR 59 at 62–63). 3 · s 9(1A)(a) — no aggregate sentence. The court is strictly prohibited from imposing an aggregate sentence of imprisonment where the offender is a serious offender under Part 2A and any offence is a relevant offence. Individual, itemised sentences must be imposed on each count to permit proper appellate scrutiny — even where the offending is tightly clustered and itemisation is artificial (Adrian Hassall v The King [2024] VSCA 163; DPP v Frewstal Pty Ltd (2015) 47 VR 660; VSCA 266; Sinclair v The Queen VSCA 144).
GATE 5 Commonwealth — Pt IB Crimes Act 1914, s 16A
No serious-offender regime — but consistency and proportionality bind. s 16A(1): impose a sentence of a severity appropriate in all the circumstances of the offence. s 16A(2) mandates regard to specified factors. Quantity remains the primary statutory driver of the maximum, but is not the chief determinant of gravity. The controlling High Court propositions: the primary obligation is consistency in sentencing throughout the Commonwealth — it was an error of law for the Victorian Court of Appeal to reduce a federal importation sentence (Criminal Code (Cth) s 307.2) solely to align it with "current sentencing practices in Victorian courts" to the exclusion of other jurisdictions (R v Pham (2015) 256 CLR 550; HCA 39). Consistency means consistency in the application of correct legal principles — not numerical uniformity or rigid "tariffs" or "benchmarks"; statistics, tables and graphs are of limited utility and do not set boundaries on the discretion (Hili v The Queen (2010) 242 CLR 520; HCA 45). Proportionality is the outer limit. Community protection and incapacitation are legitimate federal considerations, but are governed by proportionality — a federal court cannot impose a sentence disproportionate to the gravity of the offence merely to satisfy a protective or preventative purpose (Bui v DPP (Cth) (2012) 244 CLR 638). This is the point of departure from Victorian s 6D(b). Statistical reasoning is impermissible. It is an error to adopt an impermissible statistical analysis of comparable cases to determine objective seriousness; that is a fundamental departure from the individualised justice required by s 16A (R v Pham (2015) 256 CLR 550).
s 16A(2) — the factors that recur in federal drug matters¶
| Provision | Factor | Note |
|---|---|---|
| s 16A(2)(g) | The fact of a guilty plea | Assessed by reference to its timing and the extent to which it facilitated the course of justice (Cameron v The Queen (2002) 209 CLR 339). |
| s 16A(2)(h) | Cooperation with law enforcement | Governed strictly by s 16AC, which requires the court to state the sentence that would have been imposed but for the cooperation. |
| s 16A(2)(j), (ja) | Specific and general deterrence | General deterrence assumes paramount importance in drug matters — see Gate 6. |
| s 16A(2)(k) | Ensuring the offender is adequately punished | — |
| s 16A(2)(n) | Prospects of rehabilitation | — |
| s 16B | Totality on cumulation | Where a federal sentence is cumulative on, or overlaps with, an existing sentence (including State or Territory sentences), the court must review the aggregate so the total time in custody adequately and fairly represents the totality of the criminality (Postiglione v The Queen (1997) 189 CLR 295, citing Mill v The Queen (1988) 166 CLR 59). |
| GATE 6 Assessing gravity — quantity, purity, role, motive | ||
| The four axes on which drug culpability is actually argued. Quantity. Both Victorian and federal courts use the quantity-based scheme as the primary indicator of seriousness, but quantity is never entirely determinative of the penalty (R v Pidoto; R v O'Dea (2006) 14 VR 269; R v McCulloch VSCA 34). Relative harmfulness is off-limits. Because the legislature has constructed a strict statutory hierarchy based on quantities, courts are precluded from making their own judicially constructed assessments of the relative harmfulness of different proscribed drugs; harmfulness is irrelevant to the exercise of the sentencing discretion (R v Pidoto; R v O'Dea (2006) 14 VR 269). The same applies to quantity-based drug offences under the Customs Act 1901 (Cth) (R v Adams VSCA 37; appeal dismissed, Adams v The Queen (2008) 244 ALR 270). The limitation is confined to trafficking and cultivation — it does not apply to possession, use, or trafficking or supply to a child. → Purity — still fully in play: higher purity increases both gravity and culpability, given the drug's heightened destructive potential and the ease with which it can be cut to produce a larger quantity (R v Olbrich (1999) 199 CLR 270). Pidoto forecloses relative-harm arguments, but the relative purity of a mixed quantity bears directly on objective gravity (Kapkidis v The Queen VSCA 35). Weinberg JA: treating trafficking in 3.9 kg of pure methylamphetamine as indistinguishable from 1.9 g of methylamphetamine in a 3.9 kg mixture would be "an affront to common sense" (R v Trajkovski & Waters VSCA 170). → Role in the hierarchy: identifying the precise nature or label of the accused's involvement is not an essential or mandatory aspect of the sentencing process in every case; shorthand labels such as "courier" or "principal" must not be allowed to obscure what the offender actually did (R v Olbrich (1999) 199 CLR 270 at 279; R v Pham (2015) 256 CLR 550 at 562). Where the evidence establishes the acts performed and the role occupied, criminality is assessed by considering both (R v Son Anh Pham and R v Ken Tang VSCA 101). → The "courier" argument — and its limits: "the courier has a most pivotal role to play in any drug distribution operation. Without the courier the proscribed drugs could not find their way on to the streets…" (R v Nicholas (2000) 1 VR 356, applied in R v Ro Si Vo VSCA 21). A courier's culpability lies only marginally below that of a principal. Crucially, the offender bears the burden of proving they are less culpable than the objective facts would otherwise indicate (R v Olbrich (1999) 199 CLR 270) — on the balance of probabilities federally. Couriers who take large risks for moderate rewards and are kept in the dark by their principals must still receive condign punishment so general deterrence is not undermined (DPP (Cth) v Alon Inbar VSCA 116, referencing R v Carey 4 VR 13 and R v Perrier and Richardson (1990) 59 A Crim R 164). → Addiction vs commercial profit: offending motivated solely by addiction to fund personal use carries lower moral culpability than trafficking for commercial profit and greed. A heavy addict who trafficked a large commercial quantity of heroin purely to secure their own daily supply had "a degree of moral culpability less than that which was or would be attributable to an offender profiteering from large commercial quantities of a drug" (R v Van Tu Nguyen VSCA 141, Mandie AJA). → General deterrence dominates: because drug trafficking is driven by easy and enormous financial rewards, general deterrence and denunciation assume paramount importance (Dawid v DPP VSCA 64; Lieu v The Queen (2016) 263 A Crim R 173 at 185–186). Sentences must signal that the potential financial rewards are entirely neutralised by the risk of severe punishment. Any perception that buying or importing drugs online (e.g. via the "Silk Road" or postal mail) is less serious than dealing with traditional cartels must be firmly dispelled (Matthews v R; Vu v R; Hashmi v R VSCA 291; also cited as Matthews v The Queen (2014) 44 VR 280). → The corollary for the plea: personal mitigating circumstances — including previous good character and lack of prior convictions — must generally yield and be accorded less weight in drug trafficking (Tsang v The Queen (2011) 35 VR 240 at 274; R v Nguyen; R v Pham (2010) 205 A Crim R 106 at 127). |
Confiscation and the plea — the trap¶
The common law position, now displaced: at common law a sentencing court was required to take into account, as a factor in mitigation, the devastating financial impact of automatic forfeiture (R v Winand (1994) 73 A Crim R 497 at 501).
The statutory ban: s 5(2A)(f) Sentencing Act 1991 (Vic) explicitly prohibits the court from having regard to the automatic forfeiture of property occurring under Div 4 of Pt 3 Confiscation Act 1997 when sentencing. Defence counsel cannot rely on the loss — however devastating — to reduce the length of a custodial sentence.
But note the contrast — the surviving argument: lawfully acquired property forfeited under Div 2 or Div 3 of Pt 3 Confiscation Act 1997 may be taken into account by the court under s 5(2A)(ab) Sentencing Act 1991. Identify which Division the forfeiture occurred under before conceding the point — the ban is confined to Div 4.
The two Victorian regimes side by side¶
| Axis | s 89DI declaration (confiscation) | Part 2A classification (sentencing) |
|---|---|---|
| Source of definition | Confiscation Act 1997 (Vic) s 3(1) | Sentencing Act 1991 (Vic) s 6B(2) + Sch 1, cl 4 |
| Trigger | Conviction alone, by any court | Conviction plus a term of imprisonment / YJC detention |
| Discretion | None — the court must declare (s 89DI(1)) | Status follows automatically once both limbs are met |
| Young offenders | Not carved out on the face of s 89DI(1) | Excluded — Part 2A applies to an offender other than a young offender |
| Includes s 71AB / s 71AC? | Yes — trafficking to a child and trafficking a drug of dependence are both on the s 3(1) list | No — Sch 1 cl 4 lists only ss 71, 71AA, 72, 72A (plus inchoate and attempts) |
| Includes Cth offences? | No | Yes — cl 4(ba): ss 307.1, 307.2, 307.5, 307.6, 307.8, 307.9 as qualifying prior convictions |
| Principal effect | Automatic forfeiture of almost all property (Div 4, Pt 3) + s 5(2A)(f) ban on mitigation | s 6D community protection primary (and possible disproportionate sentence) · s 6E cumulation · s 9(1A)(a) no aggregate |
Commonwealth Part 9.1 — the offence map¶
| Division | Offence | Provision | Maximum |
|---|---|---|---|
| 302 — Trafficking controlled drugs | Trafficking commercial quantities | s 302.2 | Life or 7,500 penalty units, or both |
| Trafficking marketable quantities | s 302.3 | 25 years or 5,000 penalty units, or both | |
| 305 — Commercial manufacture | Manufacturing commercial quantities | s 305.3 | Life or 7,500 penalty units, or both |
| Manufacturing marketable quantities | s 305.4 | 25 years or 5,000 penalty units, or both | |
| Aggravated manufacture (e.g. exposing a child under 14 to the manufacturing process) | — | Elevated — e.g. 28 years for marketable quantities | |
| 306 — Pre-trafficking precursors | Possessing, selling or importing precursor chemicals (e.g. pseudoephedrine) with intent to manufacture controlled drugs | Div 306 | — |
| 307 — Import / export | Import or export commercial quantities of border controlled drugs or plants | s 307.1 | Life |
| Import or export marketable quantities | s 307.2 | — | |
| Possessing commercial quantities of unlawfully imported border controlled drugs / plants | s 307.5 | — | |
| Possessing marketable quantities of unlawfully imported border controlled drugs / plants | s 307.6 | 25 years | |
| Possessing commercial quantities reasonably suspected of being unlawfully imported | s 307.8 | Life | |
| 309 — Offences involving children | Supplying marketable quantities of controlled drugs to children for trafficking | s 309.3 | Life |
| Procuring children for trafficking controlled drugs | s 309.8 | Life | |
| Import / export marketable quantities of border controlled precursors involving children | s 309.14 | Life |
What is a "serious drug"?¶
s 300.2 Criminal Code (Cth): a controlled drug, a controlled plant, a border controlled drug, or a border controlled plant. The definitional gateway to the whole of Pt 9.1.
Authorities at a glance¶
Gravity and culpability¶
| Authority | Proposition |
|---|---|
| R v Pidoto; R v O'Dea (2006) 14 VR 269 | Quantity is the primary indicator but never entirely determinative. Courts are precluded from their own assessments of the relative harmfulness of different drugs; harmfulness is irrelevant to the discretion. Confined to trafficking and cultivation — not possession, use, or trafficking/supply to a child. |
| R v Adams VSCA 37; Adams v The Queen (2008) 244 ALR 270 | The Pidoto principle applies equally to quantity-based drug offences under the Customs Act 1901 (Cth). Appeal to the High Court dismissed. |
| R v Olbrich (1999) 199 CLR 270; HCA 54 | Purity heightens gravity (destructive potential; ease of cutting). No obligation to make precise findings on the offender's exact level or position in a hierarchy. The question is what the offender did and who the offender was, not what others hoped to gain. An offender seeking a discount for a low-level role bears the burden — on the balance of probabilities. |
| Kapkidis v The Queen VSCA 35 | The relative purity of a mixed quantity bears directly on the objective gravity of the offence, notwithstanding Pidoto. |
| R v Trajkovski & Waters VSCA 170 | Weinberg JA: treating 3.9 kg pure methylamphetamine as indistinguishable from 1.9 g in a 3.9 kg mixture would be "an affront to common sense". |
| R v Pham (2015) 256 CLR 550 at 562 | Labels such as "courier" or "principal" must not obscure what the offender actually did. |
| R v Son Anh Pham and R v Ken Tang VSCA 101 | Where the evidence establishes the acts performed and the role occupied, criminality is assessed by reference to both. |
| R v Nicholas (2000) 1 VR 356; R v Ro Si Vo VSCA 21 | "the courier has a most pivotal role to play in any drug distribution operation…" Culpability lies only marginally below a principal's. |
| DPP (Cth) v Alon Inbar VSCA 116 | Couriers taking large risks for moderate rewards, kept in the dark by principals, must receive condign punishment so general deterrence is not undermined (referencing R v Carey 4 VR 13; R v Perrier and Richardson (1990) 59 A Crim R 164). |
| R v Van Tu Nguyen VSCA 141 | Trafficking purely to fund an addiction carries "a degree of moral culpability less than that which was or would be attributable to an offender profiteering from large commercial quantities of a drug" (Mandie AJA). |
| Dawid v DPP VSCA 64; Lieu v The Queen (2016) 263 A Crim R 173 at 185–186 | General deterrence and denunciation assume paramount importance; sentences must neutralise the perceived financial reward. |
| Matthews v R; Vu v R; Hashmi v R VSCA 291; Matthews v The Queen (2014) 44 VR 280 | Any perception that online / postal drug acquisition is less serious than dealing with traditional cartels must be firmly dispelled. |
| Tsang v The Queen (2011) 35 VR 240 at 274; R v Nguyen; R v Pham (2010) 205 A Crim R 106 at 127 | Personal mitigation — good character, lack of priors — must generally yield and be accorded less weight in drug trafficking. |
Part 2A — serious drug offender¶
| Authority | Proposition |
|---|---|
| McKenzie v The Queen VSCA 34 | The Part 2A serious offender provisions do not apply to Commonwealth offences, and there is no equivalent scheme under federal law. But Sch 1 cl 4(ba) allows specified Cth prior convictions to be qualifying convictions for a later Victorian Sch 1 drug offence. |
| R v Fuller-Cust (2002) 6 VR 496; Underwood (A Pseudonym) v The Queen (No 2) VSCA 87 | s 6D(a) — protection of the community from the offender is the principal purpose of the sentence. |
| Veen v The Queen [No 2] (1988) 164 CLR 465 | The common law proportionality principle — directly overridden by the statutory power in s 6D(b). |
| R v Prowse VSCA 287 | Before invoking s 6D(b) the court must be satisfied beyond reasonable doubt the offender will remain a danger to the community beyond a proportionate sentence. |
| Boulton v The Queen (2014) 46 VR 308; [2014] VSCA 342; Brown v The Queen [2020] VSCA 212 | Where the risk of re-offending is low, community protection weighs less heavily and a disproportionate sentence is unjustified. |
| R v Milne (1995) 78 A Crim R 133 at 139 | s 6E — "unless otherwise directed" preserves the discretion; exceptional circumstances are not required to order concurrency or partial concurrency. |
| Newton v The Queen VSCA 207; Zhao v The Queen VSCA 267; Bogdanovich v The Queen VSCA 388 | s 6E does not fully negate totality — the court must stand back and ensure the total effective sentence is not "crushing". |
| DPP v Marino VSCA 133; Mill v The Queen (1988) 166 CLR 59 at 62–63 | Totality remains the overriding constraint — the aggregate must be proportionate to the total criminality. |
| Adrian Hassall v The King [2024] VSCA 163; DPP v Frewstal Pty Ltd (2015) 47 VR 660; VSCA 266; Sinclair v The Queen VSCA 144 | Aggregate sentences are a "flexible and pragmatic" mechanism for a high number of similar, temporally proximate offences — but s 9(1A)(a) excludes serious offenders, so individual sentences must be imposed even when the offending is tightly clustered. |
| R v Winand (1994) 73 A Crim R 497 at 501 | The common law required forfeiture's financial impact to be treated as mitigation — now displaced for Div 4 automatic forfeiture by s 5(2A)(f). |
Commonwealth sentencing¶
| Authority | Proposition |
|---|---|
| R v Pham (2015) 256 CLR 550; HCA 39 | The primary obligation is consistency in sentencing throughout the Commonwealth. Error of law to reduce a federal sentence (s 307.2) solely to align with "current sentencing practices in Victorian courts" to the exclusion of other jurisdictions. Also an error to adopt an impermissible statistical analysis of comparable cases to determine objective seriousness — a fundamental departure from the individualised justice s 16A requires. |
| Hili v The Queen (2010) 242 CLR 520; HCA 45 | Consistency does not mean numerical uniformity or rigid "tariffs" or "benchmarks" — it requires consistency in the application of correct legal principles. Statistics, tables and graphs are of limited utility and set no boundaries on the discretion; courts must not enforce a "range" overriding the individual circumstances. |
| Bui v DPP (Cth) (2012) 244 CLR 638 | Community protection and incapacitation are legitimate federal considerations but are governed by proportionality — a court cannot impose a sentence disproportionate to the gravity of the federal offence merely to satisfy a protective purpose. The federal contrast with s 6D(b). |
| Cameron v The Queen (2002) 209 CLR 339 | s 16A(2)(g) — a guilty plea is assessed by its timing and the extent to which it facilitated the course of justice. |
| Postiglione v The Queen (1997) 189 CLR 295; HCA 26; Lowe v The Queen (1984) 154 CLR 606 | Parity — equal justice requires sentences in "due proportion" to relative degrees of criminality; marked and unjustified disparity giving rise to a "justifiable sense of grievance" is appealable error. Different sentences are justified where there are distinct differences in role, cooperation or personal circumstances. Totality under s 16B applies to aggregates including State or Territory sentences. |
| R v Renzella 2 VR 88; Underwood (A Pseudonym) v The Queen (No 2) VSCA 87; Sahhitanandan v The Queen VSCA 115 | In-custody time unrelated to the offence (e.g. immigration detention, or an unrelated sentence later quashed) cannot be declared as pre-sentence detention under s 18(1) Sentencing Act 1991, but must be taken into account in a broad, non-mathematical, practical way as a "very significant factor in mitigation" to reduce the head sentence and non-parole period and prevent a miscarriage of justice. |
The advocate's checklist¶
• Check both Victorian lists separately. s 3(1) Confiscation Act and Sch 1 cl 4 Sentencing Act are not the same list. s 71AB and s 71AC trigger the s 89DI declaration but are not Part 2A drug offences.
• Identify the forfeiture Division before conceding. s 5(2A)(f) bars only Div 4 automatic forfeiture. Div 2 or Div 3 forfeiture of lawfully acquired property may be taken into account under s 5(2A)(ab).
• On a federal count, resist Part 2A by name. McKenzie — Part 2A does not apply, and s 6D(b) disproportionality has no federal analogue; Bui confines protective sentencing to proportionality.
• Do not argue relative drug harmfulness on a trafficking or cultivation count. Pidoto; O'Dea forecloses it. But purity of a mixed quantity is fair game (Kapkidis; Trajkovski), and the Pidoto limitation does not reach possession, use, or trafficking/supply to a child.
• If running "mere courier", carry the onus. Olbrich — the offender bears the burden of proving lesser culpability than the objective facts indicate. Anticipate Nicholas ("pivotal role") and Alon Inbar (risk-for-reward, kept in the dark).
• Run addiction as a motive, not an excuse. Van Tu Nguyen — trafficking purely to fund a personal habit reduces moral culpability relative to profiteering.
• Concede that character will be discounted. Tsang; Nguyen; Pham — personal mitigation must generally yield to general deterrence in trafficking. Do not build the plea on it.
• Preserve totality despite s 6E. Newton; Zhao; Marino; Mill — the presumption of cumulation does not license a crushing total effective sentence, and exceptional circumstances are not needed to direct concurrency (Milne).
• Insist on itemised sentences. s 9(1A)(a) — an aggregate sentence for a serious drug offender is strictly prohibited, even where itemisation is artificial (Adrian Hassall).
• Claim unrelated custody. Renzella — time in custody wholly unrelated to the offending is a "very significant factor in mitigation" even though it cannot be declared under s 18(1).
Citation collision — resolve before citing
the source material gives both R v McCulloch VSCA 34 (gravity / quantity) and McKenzie v The Queen VSCA 34 (Part 2A does not apply to Cth offences) — the same medium-neutral number without years. At least one is wrong. Confirm both on AustLII before relying, and note that McKenzie is the load-bearing authority for the Part 2A jurisdictional limit.
Currency watch¶
• Before the 2026 exam — confirm the Sch 1, cl 4 list in the Sentencing Act 1991 (Vic) and the s 3(1) list in the Confiscation Act 1997 (Vic) against the current consolidations. Both lists are amended by drug-reform and confiscation-reform Bills more often than the case law suggests.
• Commonwealth thresholds — the commercial / marketable quantities for controlled and border controlled drugs sit in regulations under the Criminal Code Act 1995 (Cth) and are amended by regulation, not by Act. Check the current instrument, not the textbook table.
• Penalty units — the Cth maxima are expressed in penalty units (7,500 / 5,000); the value of a Commonwealth penalty unit is indexed. Confirm the current value before converting to a dollar figure.
• Part 2A young offender carve-out — Part 2A applies to an offender other than a young offender. Confirm the definition against the Youth Justice Act 2024 (Vic) commencement position.