SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2024 0223	

Matthew Carabott	Applicant	
		
v		
		
The King	Respondent	

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JUDGES:	NIALL CJ and T FORREST JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	9 May 2025	
DATE OF JUDGMENT:	28 May 2025	
MEDIUM NEUTRAL CITATION:	[2025] VSCA 118	
JUDGMENT APPEALED FROM:	[2024] VCC 1619 (Judge Chambers)	

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CRIMINAL LAW – Appeal – Sentence – Pleaded guilty to 11 drug‑related offences – Charge 2 for possession of substances, materials, documents and equipment for drug trafficking – Sentence on charge 2 (base) of 2 years and 4 months – Whether sentencing discretion on charge 2 miscarried by treatment as ‘rolled‑up charge’ comprising 26 instances – Was open to style charge 2 as ‘rolled‑up charge’ – Applicant pleaded guilty to ‘rolled‑up charge’ – No miscarriage – Leave to appeal refused.

Drugs, Poisons and Controlled Substances Act 1981, ss 71A, 71D.

Lipp v The Queen [2013] VSCA 384, considered.

CRIMINAL LAW – Appeal – Sentence – Pleaded guilty to 11 drug‑related offences – Total effective sentence of 3 years and 6 months – Non‑parole period of 1 year and 9 months – Whether judge failed to regard effect of family hardship on the applicant – Absence of explicit reference in judge’s reasons does not mean failure to consider effect of family hardship on applicant – Leave to appeal refused.

Markovic v The Queen (2010) 30 VR 589; R v Panuccio (Court of Appeal of the Supreme Court of Victoria, Winneke P, Brooking and Charles JJA, 4 May 1998), discussed.

R v Koumis (2008) 18 VR 434; Bleakley v The King [2024] VSCA 88, considered.

CRIMINAL LAW – Appeal – Sentence – Pleaded guilty to 11 drug‑related offences – Total effective sentence of 3 years and 6 months – Non‑parole period of 1 year and 9 months – Whether individual sentences, orders for cumulation and non‑parole period manifestly excessive – Whether exercise of mercy as consequence of exceptional family hardship established – Markovic v The Queen (2010) 30 VR 589 – Applicant’s son suffering from non‑verbal autism – Applicant’s wife suffering from mental and physical health conditions – Exceptional family hardship on family members established – Sentence on charge 2 wholly outside range – Combination of mitigating factors especially exceptional family hardship – Leave to appeal granted – Appeal allowed – Applicant resentenced to 16 months with 8‑month non‑parole period.

DPP v Miceli (1997) 94 A Crim R 327; DPP v Milson [2019] VSCA 55; DPP v Snow (a pseudonym) [2020] VSCA 67.

Clarkson v The Queen (2011) 32 VR 361; Karam v The King [2024] VSCA 164; Lai v The King [2023] VSCA 151, considered.
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Counsel	
Applicant:		Mr T Kassimatis KC with Mr M Allen	
Respondent:		Mr J Dickie	
	
Solicitors	
Applicant:		Definition Legal	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

Niall CJ 
T Forrest JA:
1	The applicant pleaded guilty to 11 charges of offences under the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’). He was sentenced on 16 October 2024 in the County Court at Melbourne. The details of each sentence are set out in the table below:
	Charge on Indictment		Offence		Max Penalty		Sentence		Cumulation	
	1		Trafficking in a drug of dependence (alprazolam)		15 years		6 months		1 month	
	2		Possession of substances, materials, documents and equipment for trafficking in a drug of dependence		10 years		2 years and 4 months		Base 	
	3		Cultivation of a narcotic plant (Cannabis L)		15 years		2 years		4 months 	
	4		Possession of a drug of dependence (multiple)		5 years		18 months		3 months	
	5		Possession of a drug of dependence (LSD)		5 years		12 months		1 month	
	6		Possession of a precursor chemical (ammonium chloride)		5 years		10 months		N/A	
	7		Possession of a precursor chemical (methylammonium)		5 years		10 months		N/A	
	8		Possession of a precursor chemical (nitromethane)		5 years		10 months		N/A	
	9		Possession of a drug of dependence (ketamine)		5 years		12 months		1 month	
	10		Attempt to possess a drug of dependence (synthetic pentylone)		5 years		6 months		N/A	
	11		Attempt to traffick in a drug of dependence (cocaine)		15 years		2 years		4 months	
	Total effective sentence:		3 years and 6 months’ imprisonment	
	Non-parole period:		1 year and 9 months	
	Pre-sentence detention declared:		15 days	
	Section 6AAA Statement:		4 years and 4 months’ imprisonment with 
	a non‑parole period of 2 years and 4 months	
	Other Relevant Orders: 
1.	Forfeiture and disposal orders. 	
2	The applicant seeks leave to appeal on the following proposed grounds of appeal:
(1)	The sentencing discretion on charge 2 — which attracted the base sentence — miscarried because it was treated by the sentencing judge as a ‘rolled‑up charge’ comprising 26 instances of the charged offence;
(2)	The sentencing judge’s discretion miscarried because the trial judge failed to have regard in mitigation to the effect on the applicant of the hardship caused to his family members by his imprisonment; and
(3)	In all the circumstances: (a) the individual sentences imposed; (b) the orders for cumulation made; and (c) the non‑parole period fixed are manifestly excessive.
Summary of relevant facts
Parcels containing unknown substances 
3	On 8 August 2022, police seized two parcels from Harcourt Post Office containing one litre or kilogram each of unknown substances. The parcels were addressed to ‘J Brindlestone’ at the applicant’s residential address. On that afternoon, the applicant attended the post office to enquire about any parcels addressed to that name.
4	On 22 August 2022, police seized two further parcels from Harcourt Post Office. These parcels contained six snap lock bags of unknown substances including 39.2 grams of dimethypentylone (charge 10 — attempt to possess pentylone). The parcels were addressed to ‘Mr J Brindlestone’ at the applicant’s address.
Cannabis at the applicant’s residence
5	As a result of the parcel seizures, on 2 September 2022, police executed a search warrant at the applicant’s residence. In a spare room at the applicant’s home, police found a hydroponic set‑up with cannabis growing, a large glass condenser full of liquid, and snap lock bags containing powders and crystals. Police seized 10 plants and materials which were subsequently detected to be 2.2543 kilograms of cannabis L (charge 3 — cultivation of a narcotic plant).
Chemical substances, glassware, documents and equipment
6	On 3 September 2022, police returned to the applicant’s residence and seized/located:
(i)	a metal drum with a tap containing dichloromethane;
(ii)	two plastic carboys containing hydrochloric acid;
(iii)	one plastic container containing 4,342 grams of ammonia;
(iv)	one plastic container containing Toluene;
(v)	two plastic carboys containing isopropanol;
(vi)	one plastic container containing 70.4 grams of 4‑aminobutanoic acid, also known as gamma‑amino‑butyric acid (GABA);
(vii)	two plastic containers containing sodium hydroxide;
(viii)	a plastic container containing sulphur;
(ix)	a plastic container containing zinc;
(x)	a bag containing 100 grams, 101.1 grams and 1,007.9 grams of 3,4,5‑trimehoxybenzaldehyde;
(xi)	a plastic container and a plastic sealed bag each containing activated charcoal;
(xii)	a plastic sachet containing sodium acetate;
(xiii)	one plastic sealed bag containing sodium carbonate;
(xiv)	two plastic containers containing a total of 621.1 grams of 4‑amino‑butanoic acid;
(xv)	two plastic bottles containing 100 grams each of 2,5 dimethoxybenzaldehyde;
(xvi)	four plastic containers containing sodium nitrite;
(xvii)	one glass bottle containing 545 grams of formaldehyde;
(xviii)	three glass bottles containing 73 grams of safrole;
(xix)	a plastic vial containing 9 grams of a substance containing 4‑hydroxybutanoic acid;
(xx)	various assorted glassware and lab materials;
(xxi)	 a snap bag containing flualprazolam powder;
(xxii)	a glass vial containing 8 grams of a substance containing N‑ethylheptedrone (an analogue of methcathinone); and
(xxiii)	literature contained on a Dell laptop, on a red iPhone, and in the applicant’s handwritten notes, including scientific journal papers, internet articles and documents describing the synthesis and/or extraction of various controlled substances.
7	A forensic officer examined the above items, concluding that the scientific glassware, equipment, chemicals and documentation would be sufficient to manufacture 4‑methylmecathinone (also known as 4‑MMC), GBL, sodium gamma‑hydroxybutyrate (Na‑GHB) and 3,4,5‑trimethoxyphenethylamine (also known as mescaline) (charge 2 — possess substances, materials, documents and equipment for trafficking in a drug of dependence).
Various drugs at the applicant’s residence
8	Police located at least 16 drugs of dependence at the applicant’s residence, such as 33.3 grams of harmine, 113.9 grams of pentylone, 46.6 grams of methcathinone, 0.4 grams of heroin and 9.0 grams of GHB (charge 4 — possess drug of dependence).
9	Police also found:
(a)	150 tabs of LSD (charge 5 — possess drug of dependence);
(b)	two bottles of ammonium chloride (charge 6 — possess precursor chemical);
(c)	two containers of methylammonium salts (charge 7 — possess precursor chemical);
(d)	two bottles of nitromethane (charge 8 — possess precursor chemical); and
(e)	a snap lock bag containing 29.8 grams of ketamine (charge 9 — possess drug of dependence).
Traffick in alprazolam
10	Investigators analysed the applicant’s WhatsApp messages and identified communications from the applicant in relation to trafficking alprazolam. The communications spanned from May 2021 to July 2022, and included the applicant requesting a sample of alprazolam from an overseas supplier, describing the production of alprazolam in different forms and asking for advice on distributing alprazolam without it being seized. On 27 August 2021, the applicant posted 300 milligrams of Xanax (alprazolam) to a person for $150 (charge 1 — traffick alprazolam).
Attempting to traffick in cocaine
11	During the search of the applicant’s residence, police located cocaine‑producing hydroponic plants and 5,884 grams of dried plant materials and boxes of mate coca leaves that tested positive for cocaine (charge 11 — attempt to traffick cocaine). Investigators also found communications in the applicant’s WhatsApp and Facebook messages regarding the production and sale of cocaine, including, stating ‘Each kilo of dried leaf produces 5g pure’ and ‘My little tent will produce 25‑50g per year, processed’.
The plea hearing
12	The plea commenced on 19 June 2024. Fresh counsel were engaged shortly thereafter and the matter proceeded on 27 July 2024.
13	On that day, the applicant submitted that, notwithstanding the seriousness of the offending, powerful mitigating factors existed, together with exceptional hardship to family members that would justify the imposition of a combination sentence consisting of time served (15 days) together with a ‘[s]ubstantial community correction order’.
14	The applicant relied on his plea of guilty at a relatively early stage, and the fact that at the age of 41, he had no prior criminal history nor subsequent alleged offending. The plea was said to evince significant utilitarian benefit. It was also submitted that he could claim ‘strong personal circumstances’ as a married man with a small child and had a good work history with tertiary‑level qualifications. It was further submitted that he had excellent and demonstrated prospects for rehabilitation.
15	The centrepiece of the plea was the assertion that were he to be imprisoned, his wife and young child would sustain ‘exceptional hardship’ in the ‘Markovic sense’. His then three‑year‑old son, Izaak, had been diagnosed with the most severe level of non‑verbal autism. Izaak is currently supported to some extent by NDIS, with Mr and Mrs Carabott being heavily involved in navigating that system. Superimposed upon this, Mrs Carabott has suffered several debilitating health issues, which we discuss further at paragraph [25] of these reasons. We note that her Honour found exceptional circumstances, and ground 3 of this application turns effectively upon whether that finding found expression — or sufficient expression — in the sentences imposed.
16	The applicant conceded that the overall offending fell within the mid‑to‑upper range for offending of this kind. Specifically, it was conceded that the charged offences were aggravated by:
(a)	the use of a false name to avoid detection. The utility of this deception was undermined somewhat by including the applicant’s correct address as part of the postal description;
(b)	the use of hydroponic set‑ups;
(c)	the presence of literature related to manufacture; and
(d)	text messages sent by the applicant in which he advises apparently like‑minded individuals that he has set up a home lab.
17	The objective gravity of the offending was said to be moderated by the following:
(a)	each charge is a single date charge as opposed to a between‑dates charge;
(b)	the accused was not suggested to be part of a larger syndicate; and
(c)	the accused’s activities did not involve violence and no amounts of money were either located or seized.
18	The prosecutor contended that the level of family hardship upon which the applicant relied did not reach ‘the exceptional circumstances level … but even if it did, Your Honour should not allow it to swamp the sentencing discretion’. The prosecutor contended that the applicant committed these offences ‘with, it seems, full knowledge of … his domestic situation’ and that 
	these problems would seem to have been in existence, including the financial hardship, at the time of the commission of these offences and Mr Carabott’s solution to all of this is to turn himself into a drug‑trafficker, and in my submission, you would really place — have little regard to the hardship if Your Honour finds there are exceptional circumstances in that situation.
19	The prosecutor contended that the judge ought to pay ‘particular regard to denunciation [and] protection of the community … and general and specific deterrence’. A combined community correction order and term of imprisonment of up to 12 months was submitted to be a totally inadequate response to this offending.
Reasons for sentence
Gravity of the offending and moral culpability
20	After summarising the surrounding circumstances, the judge determined that the gravity of the offending fell within the mid‑to‑upper range, upon consideration of: 
(a)	the offending being ‘planned and relatively sophisticated’;
(b)	the diversity and quantity of illegal substances seized by police at the applicant’s residence, along with ‘equipment, glassware and literature related to drug manufacturing’;
(c)	his use of a false name for delivery of substances to avoid detection;
(d)	his sending of online messages to others in regards to the applicant’s drug lab set‑up; and
(e)	while relatively small amounts of alprazolam (charge 1) and cocaine (charge 11) were found and those offences were isolated to only one day, his overall offending spanned around 12 months.
21	The judge observed that the applicant had specialist knowledge in biochemistry and biology, ‘must have known that what [he was] doing was illegal’ and he ‘had time to reflect on [his] conduct and desist, but … did not’. As such, the judge determined the applicant’s moral culpability was high.
Personal circumstances
22	Recognising the applicant had no prior criminal history, the judge considered the applicant ‘[turning] to such illegal activity at the age of 39 years is informed somewhat by [his] personal circumstances’. The judge observed that:
(a)	the applicant was highly educated, had a degree with honours in biological sciences, and maintained steady employment in his field up to February 2022 and on a casual basis thereafter;
(b)	his son was diagnosed with non‑verbal autism and was three and a half years old at the time of sentencing;
(c)	he commenced drug‑use in high school, and by 2021 he had developed a benzodiazepine addiction;
(d)	while there was no evidence of a diagnosed mental health disorder at the time of offending that would reduce the applicant’s moral culpability, the judge accepted the applicant’s self‑report of general stress and anxiety; and
(e)	the applicant engaged positively with the court integrated support program after being granted bail, and has remained abstinent from drugs since this time.
Exceptional family hardship
23	Turning to the factors in mitigation, the judge observed that the primary focus of the applicant’s plea was that the ‘circumstances of family hardship [were] sufficiently exceptional to warrant an extension of mercy’. The judge considered several medical reports and documents that were put before her by the applicant:
(a)	report from paediatrician, Mr Tim Penno, dated 14 May 2024;
(b)	report from speech pathologist, Ms Ellena Binney, dated 5 September 2024;
(c)	report from general practitioner, Dr Emma Haugh, dated 21 May 2024;
(d)	letter from maternal health nurse, Ms Tasmin Gordon, dated 9 October 2024; and
(e)	two letters from the applicant’s wife, Mrs Carolyn Carabott, dated 20 February 2024 and 25 September 2024.
Citing these documents, her Honour described the extensive care required for the applicant’s son, Izaak, compounded by Mrs Carabott’s health conditions. 
24	In particular, the judge noted that Izaak needs 24‑hour care. He is non‑verbal and, at the time of sentencing, his autism diagnosis was at level three (the highest level) for social communication and repetitive behaviour. He can only say the word ‘wait’, despite having 12 months of speech therapy. Izaak’s inability to communicate can lead to him being frustrated, having meltdowns and displaying aggression. Referring to Ms Gordon’s observation, the judge noted the applicant’s role in calming Izaak down, and 
[acting] almost as an intermediary, anticipating Izaak’s needs and assisting his allied health workers to understand Izaak better.
The judge noted that Izaak’s physical outbursts will become harder to handle as he grows bigger, and that the applicant is better able to manage these compared to Mrs Carabott given her health conditions. Her Honour noted there is a ‘significant risk of [Izaak] falling even further behind his peers’ if he does not ‘consistently have familiar people around him to support his development’.
25	The judge observed that without the applicant’s support, Mrs Carabott would struggle to manage Izaak’s daily needs and behavioural issues alone. Her Honour considered the reports that describe Mrs Carabott’s inability to lift heavy objects — including her son — and to walk for sustained periods. The sentencing reasons outline Mrs Carabott’s daily suffering of pain following a hernia repair required after Izaak’s birth, and her endometriosis that causes further pain when it ‘flares up’. Mrs Carabott also suffers from post‑traumatic stress disorder, and the judge noted that without the applicant’s support, Mrs Carabott’s mental health would deteriorate.
26	The sentencing reasons also outline the financial strain on the family if the applicant, the sole breadwinner, was to be imprisoned.
Other mitigation factors
27	In relation to other mitigating factors, the judge observed that the applicant:
(a)	pleaded guilty at an early stage and the utilitarian benefit provided by his early plea;
(b)	demonstrated remorse and acknowledged responsibility for his offending;
(c)	had no prior criminal convictions;
(d)	had previously good character, as demonstrated in letters of support from his parents, wife and employer; and
(e)	had good prospects of rehabilitation, and made efforts to rehabilitate subsequent to being charged for the current offending.
This application
Submissions: proposed ground 1 — charge 2 not a rolled‑up charge
28	In his written case, the applicant contended that charge 2, an offence brought under s 71A of the Act, could never be the subject of a rolled‑up charge. This was said to be so as 
	[a]lthough the text of s 71A(1) of the Act is drafted in the singular the offence – and, in particular, its mens rea – cannot be made out unless a person is found in possession of at least two, or more likely a collection, of substances, materials, documents or equipment sufficient to render their possession ‘for the purpose of trafficking a drug of dependence’.
29	No authority is cited in support of this proposition.
30	Nothing in the text of s 71A of the Act requires possession of more than one item. The respondent accepts, and we agree that
	[a]lthough it is most likely that multiple items will have been possessed or alleged to have been possessed, a person might properly be convicted of possession of one applicable item so long as it can be proven that [it] was possessed with the relevant intention.
31	A convenient example would be possession of, say, a pill press with accompanying admissions as to a trafficking intention.
32	Certainly a charge under s 71A may particularise the possession of multiple substances, materials, documents or equipment. In Lipp, Redlich JA and Lasry AJA noted that ‘[t]he offence under s 71A may, as it did in the present case, involve multiple acts, only one of which included possession of the precursor chemical’ however, because s 71A can be charged as a standalone count with many alleged acts, this does not preclude it from being charged as a rolled‑up count, if the parties agree.
33	During the oral hearing of this application, we understood the applicant’s argument to alter somewhat. Whilst apparently accepting that the possession of the 26 nominated items could conceivably be the subject of a rolled‑up charge, it could also be the subject of a single standalone count with 26 particulars of possession of relevant items. The applicant then contended that the repeated description of the charge as a rolled‑up charge by the prosecutor, defence counsel and judge ultimately caused the judge to treat the offending as a more serious offence than in fact it was. We do not accept this contention. However the charge was styled, the underlying facts are the same. We are not satisfied that the judge’s conclusion that charge 2 was ‘a very serious example of this offence’ — noting this is a rolled‑up example of the charge — would have been any different if it were charged as a single standalone offence with multiple particulars. 
Consideration: proposed ground 1 — charge 2 not a rolled‑up charge
34	We do not accept the applicant’s original argument under this proposed ground, as expressed in the written case. For the reasons we have set out, it was open to style charge 2 as a rolled‑up charge as was in fact done. Charge 2 was described as a rolled‑up charge in the indictment and the applicant pleaded guilty to the charge expressed that way; the prosecutor and defence counsel both referred to charge 2 as a rolled‑up charge, and as we have observed, the judge sentenced the applicant on that basis. It is too late now to rewrite history.
35	Leave to appeal under this proposed ground will be refused.
Submissions: proposed ground 2 – effect of family hardship on the applicant
36	Under this proposed ground the applicant contended that, whilst her Honour found that exceptional family hardship existed and that the principles in Markovic were engaged, the effect of family hardship on the applicant was overlooked.
37	It is uncontroversial that family hardship to an offender’s family members may be taken into account in two ways:
(a)	only in an exceptional case, where the plea for mercy is seen as irresistible can family hardship be taken into account. The focus of the enquiry is on the impact the sentence will have on the offender’s family members, and the court may tailor its sentence to relieve the plight of those family members; and/or
(b)	a sentencing court may take into account, as a separate sentencing consideration, the effect on the offender of hardship caused to family members by his or her absence if imprisoned.
38	The court in Markovic explained this:
	Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be ‘exceptional’ or ‘extreme’ before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court’s primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.
	Thus it has been often stated that it is a general principle of sentencing that the court should usually disregard the impact which the sentence will have upon the members of a prisoner’s family unless exceptional circumstances have been demonstrated. The principle has been so often stated that it does not need repeating … It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.
39	The effect of family hardship on the applicant received little attention during the plea; it was not mentioned at all by defence counsel in his written submissions although it was raised by him during the plea hearing:
	Your Honour, if Your Honour wasn’t minded to adopt or accept our submissions in relation to the application of Markovic, we would still say that Your Honour ought accept that Mr Carabott will suffer a significant degree of anguish if he’s in the custodial setting about his family’s welfare. Now, that’s firstly due to the physical and developmental issues of Izaak, the concerns about his wife, but also being the sole breadwinner, there’s a degree of uncertainty as to where well — I think he goes a bit higher than that. If Mr Carabott was returned to custody for a lengthy period of time, it would be a circumstance where they would lose their property in Harcourt, as he’s effectively paying the mortgage at the moment.
40	The prosecutor mentioned it only in passing and it received no attention in the judge’s sentencing remarks.
Consideration: proposed ground 2 – effect of family hardship on the applicant
41	We are not prepared to infer the absence of explicit reference to this offender hardship leads to a conclusion that her Honour overlooked this well‑known and understood sentencing consideration. It has been long established that the absence of reasons or matters relevant to sentencing will not, of itself, vitiate the sentencing discretion. 
42	The applicant relies on the judge’s otherwise conscientious sentencing remarks to highlight the absence of explicit reference to offender hardship. The hardship of the affected family members was the centrepiece of the plea, albeit directed largely at the family’s hardship with little emphasis on the concomitant offender hardship. We tend to agree with the respondent’s submission that in these circumstances, ‘it is hardly surprising that no direct reference was made in the sentencing remarks to the ancillary, and less significant aspect of how this hardship would make the applicant’s time in custody more burdensome’.
43	The applicant has not established that the judge’s sentencing discretion miscarried in the manner alleged. Put another way, the applicant has not established that the judge’s failure to mention a relevant sentencing consideration in her otherwise impeccable reasons for sentence, was the product of a failure to consider it. We also observe that in the rare case in which extreme or exceptional family circumstances are established, the benefit allowed will often be so substantial as to subsume or moderate less pressing mitigatory circumstances, which otherwise may demand more attention in the sentencing exercise.
44	For the above reasons, leave to appeal on ground 2 will be refused. 
Submissions: proposed ground 3 — manifest excess
45	This court regularly observes that a ground of appeal that alleges manifest excess is a difficult ground to establish. The ground can only succeed if it can be shown that the sentence was wholly outside the range of sentences available to a judge in the reasonable exercise of his or her sentencing discretion. In the absence of specific error, the sentence imposed, or the orders for cumulation, must bespeak underlying error.
46	The applicant does not dispute that his offending involved serious criminality, nor could he. The diversity and quantity of the various substances found in his possession together with other identified equipment, literature and material lead to the conclusion that charge 2 is a serious example of that offence which carries a maximum sentence of 10 years. That said, the practical effect of the assembled materials and equipment in terms of its utility in manufacturing drugs at any particular level was not clearly exposed in the prosecution summary. 
47	As we have observed, the applicant relied on the following combination of mitigating factors:
(a)	his early guilty plea, its utilitarian benefit and the inference of ‘some remorse’ arising from it;
(b)	his age (41 years at the time of sentence) and his lack of any prior criminal history;
(c)	his good progress in rehabilitation in his two years on bail awaiting sentence;
(d)	his good prospects of further rehabilitation; and
(e)	exceptional family hardship.
48	This latter consideration is only available to be considered as a mitigating factor if an accused is able to establish an exercise of mercy is appropriate as a consequence of exceptional family hardship. This is an onerous test. It is only where a plea for mercy is seen as irresistible that family hardship can be taken into account. 
49	This consideration was the focus of much of the plea and the submissions on this application. The applicant contended that this was a really significant factor that ought to have acted powerfully in mitigation of sentence.
50	The respondent, whilst not disputing the judge’s finding of exceptional family hardship, contended that it was not a powerful consideration, but simply a fact to be considered with all the other factors in the sentencing matrix, and ought not be given disproportionate weight. As we have observed, the prosecutor went so far as to contend that, even if exceptional family hardship was found, Izaak’s difficulties were known at the time of offending and thus the judge ‘would have little regard to the hardship if Your Honour finds there are exceptional circumstances in that situation’. This submission is misconceived. Once exceptional hardship to the family has been established, the sentencing benefit is to alleviate the family’s hardship, not the offender’s hardship. 
Consideration: proposed ground 3 — manifest excess
51	The evidence demonstrated:
(a)	Izaak, now aged four, suffers from a form of autism. He is profoundly disabled and may also have ADHD. He is non‑verbal and cannot use or interpret copy‑signs consistently. He becomes frustrated and emotionally dysregulated. He exhibits displays of aggression, tantrums or meltdowns and self‑harm;
(b)	Izaak’s mother, the applicant’s wife, has a range of complex medical and mental health conditions, following the birth of Izaak. She expressed her difficulties in a letter to the court which we shall quote in part:
	I am very limited with my physical capacity in caring for Izaak. Post partum, I had to have two major operations which [has] left with long term issues. I am unable to lift/carry Izaak and require full time help to do this across all areas of Izaak’s needs i.e.: getting in and out of his cot, feeding, dressing, managing meltdowns or panic attacks. I struggle to engage with Izaak physically for long periods of time. My body is very tired and worn out and I have to constantly sit down or lie down on the couch. 
	… 
	Izaak has formed an extremely close bond with Matt … Matt plays a major daily role in Izaak’s physical, mental and educational well being [sic] on a daily basis. Without Matt, Izaak’s development and mental health would be dramatically neglected if left to me by myself. 
	… 
	Due to Izaak’s severe level of autism, being completely non [verbal], [his] developmental delays and his complex and highly demanding behavioural issues, Izaak requires 24 hour constant care. He requires full time care for almost all daily tasks. This includes overnight care i.e.: toilet accidents, waking up overnight from being unwell and having to take medications or having panic attacks caused by what we assume is a nightmare. Having to take care of Izaak overnight requires a very strong physically abled person who can lift Izaak in and out of his cot to help him settle and have all his needs addressed properly. 
	… 
	Taking care of Izaak and ALL of his needs is literally a full time job, 24 hours a day. It never ends. He requires 24 hour supervision at all times. He’s not a normal child that you can leave alone at any point. … I am very tired. I cannot do this without Matt. If l am left alone without the full proper support to care for Izaak and ALL of Izaak’s constant, ongoing, daily needs and emotional well being (that only Matt is able to provide for most of it) then this would take a huge [toll] on my own mental and physical health and wellbeing.
52	The proposition that ‘there must always be a place in sentencing for the exercise of mercy is of longstanding and high authority and has been repeatedly affirmed by this Court’. In DPP v Milson, the Court said:
	Mercy may justify the imposition of a sentence which may bear less heavily upon an offender than if he or she were to receive his or her just deserts [sic]. Mercy thus permits considerations such as extreme disadvantage and hardship to be recognised as a factor mitigating sentence. Mercy may also come into play where a judge forms the view that leniency at that particular stage of the offender’s life might lead to reform. Mercy must, however, be exercised ‘upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well‑balanced judgment’.
53	After prolonged consideration, we have concluded that the sentences imposed on the individual offences including charge 2 (the base sentence), and the total effective sentence fail to give proper recognition to the exceptional family hardship and are beyond the range of sentences reasonably open to her Honour. If there were no finding of exceptional family hardship, some of the sentences would appear to us to be stern. For example, the sentences on:
(a)	charge 1 (trafficking a small quantity of alprazolam (Xanax)) — 6 months’ imprisonment; 
(b)	charge 11 (attempting to traffick in cocaine) involving 5,884 grams of dried plant material which tested positive to an unstated and uncertain quantity of cocaine and constituted an ‘attempt’ with an indefinite prospect of fulfilment — 2 years’ imprisonment; and
(c)	charge 3 (cultivation of 10 cannabis plants weighing 2.2 kilograms) — 2 years’ imprisonment. 
Regrettably, we cannot discern any practical impact of exceptional family hardship upon the sentences imposed. Put another way, the sentences imposed are not out of kilter for someone in the applicant’s position but without family hardship. We will grant leave under ground 3 and allow the appeal against sentence.
Resentence 
54	The focus of the exceptional family hardship ‘Markovic’ consideration is to alleviate that hardship to the family, and in the rare case where the hardship circumstances are truly exceptional, the court ought to tailor its sentence to achieve this end. It may result in a sentence that on first blush may appear striking, but that is how the exceptional hardship doctrine can sometimes work. If, having found exceptional hardship circumstances, the sentence is moderated insufficiently to alleviate the family hardship in a practical sense, then the inquiry into family hardship and the finding that it is exceptional, is futile.
55	We will resentence the applicant on all charges, paying what we consider to be appropriate attention to all factors both aggravating and mitigating but with particular attention to the exceptional family hardship. 
Conclusion 
56	Grounds 1 and 2 do not have arguable prospect for success. Leave to appeal on those grounds is refused.
57	Leave to appeal on ground 3 is granted, and the appeal is allowed. The applicant is to be resentenced on all charges as follows:
(a)	charge 1 — 3 months (1 month cumulation);
(b)	charge 2 — 9 months (base);
(c)	charge 3 — 8 months (1 months’ cumulation);
(d)	charge 4 — 4 months (1 month cumulation);
(e)	charge 5 — 4 months (1 month cumulation);
(f)	charge 6 — 3 months (served concurrently);
(g)	charge 7 — 3 months (served concurrently);
(h)	charge 8 — 3 months (served concurrently);
(i)	charge 9 — 4 months (1 month cumulation);
(j)	charge 10 — 2 months (served concurrently); and
(k)	charge 11 — 6 months (2 months’ cumulation).
58	Thus, the total effective sentence is 16 months’ imprisonment with a non‑parole period of 8 months.
59	Pursuant to s 6AAA of the Sentencing Act 1991, had the applicant not pleaded guilty, we would have imposed a total effective sentence of 20 months’ imprisonment, with a non‑parole period of 12 months.