CDirector of Public Prosecutions v Robarts
[2023] VCC 377
•10 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-21-00709
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM PATRICK ROBARTS |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2023 | |
DATE OF SENTENCE: | 10 March 2023 | |
CASE MAY BE CITED AS: | CDPP v Robarts | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 377 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Trafficking in drug of dependence - import marketable quantity of border-controlled drug - deal in proceeds of crime being money worth more than $100,000
Legislation Cited:
Cases Cited:R v Nguyen; R v Pham [2010] NSWCCA 238
Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32Sentence:4 years' imprisonment, 2 years and 4 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth DPP | Mr P. Botros | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr C. Tom | Paul Vale Criminal Law |
HIS HONOUR:
1William Patrick Robarts, you have pleaded guilty to an offence of trafficking in a drug of dependence contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic), for which the maximum penalty is imprisonment for 15 years.
2You have also pleaded guilty to a Commonwealth offence of importing a marketable quantity of a border-controlled drug, namely ketamine, and another Commonwealth offence of dealing in the proceeds of crime being money worth more than $100,000 involving the sum of $156,150. The maximum penalty for importing a marketable quantity of a border-controlled drug is imprisonment for 25 years. The maximum penalty for the offence of dealing in the proceeds of crime being money worth $100,000 or more is imprisonment for 20 years.
3
You have also admitted a prior criminal record which includes an offence of trafficking in cannabis where, at the Heidelberg Magistrates' Court on
2 April 2014, a Community Correction Order was made without conviction. Other offences involve possession of cocaine and possession of 4‑Hydroxybutanoic acid (GHB) on 10 August 2018. You received a 'without conviction' order to attend drug rehabilitation clinic.
4The prosecution tendered and relied upon a summary of prosecution opening for the plea. That became Exhibit A. It is dated 18 July 2022. The offending conduct is summed up succinctly in that document as follows:
(i)Charge 1 concerns you conducting a business of trafficking drugs between 5 August 2019 and 22 May 2020. During that period, you sold and offered for sale drugs of dependence, namely heroin, cocaine and methamphetamine, and at the time of your arrest you had in your possession, for sale, methamphetamine and Alprazolam. You used the dark web to traffic cocaine, heroin and methamphetamine. Once you had arranged the sale of the drugs that you were offering, you posted the drugs to purchasers through the mail;
(ii)Charge 2 concerns you importing a marketable quantity of ketamine which arrived in Australia on 22 December 2020 through international mail addressed to you. The quantity of pure ketamine involved in that offence amounts to between 67 and 86 grams. The prosecution has put its case on the basis that I should deal with you for 67 grams of pure ketamine. The minimum marketable quantity is 3 grams of ketamine;
(iii)Charge 3 concerns your possession of proceeds of crime on 22 May 2020 which were discovered by police who executed a search warrant on your then home at a hotel in Collins Street, Melbourne. The total amount of cash found on that occasion was $156,150.
5 The offending the subject of Charge 1 took place over a period of between nine and ten months. According to the annexure to the summary of prosecution opening there was a total of 265 transactions that police were able to ascertain from records you kept of your trafficking enterprise. In the main, those were photographs or screenshots of your computer. From those photographs the police were able to deduce the nature and extent of your trafficking and the details of the transactions that are set out in that annexure.
6 It is clear from the information provided to me in the summary of prosecution opening that there was a degree of sophistication to your trafficking enterprise. You were able to advertise your wares on the dark web. During August 2019 you operated a profile under the title "HQ Stores AUS". There came a time, in September 2019, when several customers of yours left bad reviews of your business under the name of "HQ Stores AUS" which you conducted on what is known as the Empire Market on the dark web. That account was eventually banned. Between June 2019 and January 2020 the account had received 193 seller feed-back ratings, 143 of which were positive.
7 On 22 September 2019 you opened an account named "Hungry Jacks" and that, again, was registered on the Empire Market on the dark web.
8 You continued to use various other methods to disguise your identity and by June 2020 the Hungry Jacks account had received 414 seller feed-back ratings, 400 of which were positive.
9 I propose to sentence you on the basis of the 265 transactions that the prosecution has identified and set out in the annexure to the prosecution opening, plus the methamphetamine and Alprazolam that was found during the execution of the search warrant on your hotel room on 22 May 2020. That consisted of 9 and 11 grams of methamphetamine and 600 pills of Alprazolam. I accept that you were in possession of those amounts for the purposes of sale and they are encompassed within the facts relevant to Charge 1 on the indictment.
10 The package containing the 67 grams pure of ketamine arrived on 22 December 2019 from The Netherlands. It contained four highlighter markers which themselves concealed the ketamine which in its impure form weighed 99.8 grams.
11 The prosecution refers to notations that were made in your electronic media apparently referring to other importations of highlighters, the inference being that you had used that method on other occasions. I sentence you purely on the basis of the one occasion the subject of Charge 2 on the indictment.
12 The other matters are part of the context in which I am to consider the charges overall and Charge 1 in particular.
13 So far as the offence of dealing with the proceeds of crime is concerned, the police found and seized $156,150 in cash when they executed the search warrant on 22 May 2020. It is clear that that sum of money reflects the proceeds of your seemingly quite successful trafficking business the subject of Charge 1 on the indictment.
14 All these offences have arisen from your trafficking during the period covered by Charge 1 on the indictment. The success of that operation is, at least in part, to be measured by the sum of cash discovered by the police subject to Charge 3 on the indictment.
15 Turning to matters personal to you, your counsel provided me with a detailed and helpful outline of submissions dated 2 March 2023, along with a psychological report dated 14 December 2020 from Andrea McNeill, reports from the Court Integrated Services Program which are Exhibit 3, and a letter from The GEO Group at Ravenhall Correctional Centre, under the signature of Leigh Taylor, setting out efforts that you made towards rehabilitation during your time on remand. You took the advantage of being deemed eligible for accommodation within the Everton Mission Based Unit and the various rehabilitative courses and programmes that were available. That is very much to your credit when it comes to assessing your prospects for rehabilitation and the efforts that you have already made towards rehabilitation.
16
I was also provided with a letter from Tim Flora, Program Manager at
Odyssey House, which is Exhibit 5; a reference from Rhianna Russell, dated
5 March 2023, which along with other references is part of Exhibit 6. Other references within Exhibit 6 are a letter from your father, Greg Robarts, dated
1 March 2023; a letter from your mother of the same date; and a letter from an Andy Chen, dated 5 March 2023. All of those letters speak well of you, at least during the periods when you are not affected by the long-term drug abuse in which you engaged leading up to your arrest and subsequent incarceration on remand for these offences.
17
I think that your position, and really the essence of your plea of mitigation, is reflected in the letter of reference from your father. I am going to read part of it, where he says:
“I have spoken with William frequently since he was arrested on the 22nd May, 2020 and I remember the day as if it was yesterday. Although William has had a long history with drug's [sic] but he has also had periods of sobriety during those times.
“Once he has drugs he changes and as he has told me on many occasions the ones he loves go out the window which includes his mum, dad, brothers and girlfriend he cared for deeply. It got to a point on a number of occasions that we had to tell William to leave and fend for himself on the street which tears at the fabric of a parent as his drug taking and lifestyle was intolerable and we simply could not condone this anymore for the greater family unit.”
18 And then a little further on towards the end of the letter, your father says:
“I have written to you [meaning me at this Court] today in the hope that this glimpse of William is a demonstration that when drugs are not a part of Will's life he is a beautiful individual as part of our family but also in society.
“Unfortunately, people do say that Will doesn't have to have drugs which is correct, however he felt that he didn't fit in and to his detriment drugs became so addictive he lost his true sense of identity and life.
“Will has said to me on numerous occasions how is extremely remorseful and sorry he is for his actions which has brought him here today.
19 Whilst the submissions made on your behalf were more complex than that, it really sums up your life in recent years. The writing was on the wall, at least back in 2014, when you were given a Community Correction Order for trafficking in cannabis. You did not heed that warning and continued with your drug abuse, very much to your own detriment.
20 These offences are very significantly more serious than any of the offences that you have committed to date, as evidenced by the penalties involved for those offences. As a result of the commission of these offences you have experienced a prolonged period of custody for the first time.
21 Your counsel points out that you understand the gravity of the conduct that brings you before this court. Deterrence, denunciation and just punishment combine to require a term of imprisonment to be imposed in this case. In particular, the principle of general deterrence is also an important sentencing principle that applies. It is common ground, between prosecution and your counsel, that I have no option other than to impose a term of imprisonment upon you.
22 Your counsel, nevertheless, points out that your relative youth (you are 28 years of age now), the period spent in residential rehabilitation at Odyssey House and your engagement with the Court Integrated Services Program indicate that you have good prospects of rehabilitation. It is submitted that your guilty pleas are indicative of remorse. That is supported by the letter of your father to which I referred.
23 You have already served a period of 190 days on remand. As your counsel points out, you were at Odyssey House between 23 November 2020 and 24 March 2021, with restrictions upon your movements to a point where you were effectively confined to that institution for a period of 4 months and 2 days. He invites me to take that into account in assessing an appropriate sentence.
24 Dealing with your family background, your father points out that you largely had a happy childhood, although there were difficulties within the home. I do not need to go into those. They are common ground between your parents and it does not need to be referred to in any detail. You seem to have excelled at sport at school and enjoyed that. Otherwise your academic record was poor and you got into behavioural problems which curtailed your ability to learn.
25 You have not had much in the way of employment since leaving school because you got into drugs at a relatively young age, commencing with smoking cannabis at 15 and methamphetamine at the age of 20. By age 24 you were smoking 2 grams of methamphetamine a day. You first used cocaine at the age of 20, and by 24 you were using cocaine on a regular basis. Your use of GHB escalated over time.
26 You completed a 30-day rehabilitation program in 2017. You attended again at the same institution in 2018 for 25 days. Between 2018 and 2020 you had had four admissions to Malvern Private Clinic for rehabilitation.
27 You were diagnosed with ADHD in 2006 and placed on Ritalin. You ceased that after a few months because it made you sluggish and feel foggy.
28 It is not suggested that any mental impairments that you have enliven the Verdins principles, but it is clear that you have substance abuse issues. I note that Ms McNeill made a provisional diagnosis of borderline personality disorder with narcissistic traits.
29 I factor those matters into the synthesis that goes to determine an appropriate sentence.
30 At the time of your offending you were engaged heavily in polysubstance abuse. According to your instructions to counsel, you were using 2.5 grams of methamphetamine and 100ml of GBH daily during the period of your offending. You were living a transient lifestyle, reflected in the fact that you were arrested in a hotel room in Collins Street.
31 Your counsel urges me to consider the authorities, in particular R v Nguyen;
R v Pham [2010] NSWCCA 238 at [72] and Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32. The principles that need to be considered are relied upon by both your counsel and by the prosecution as matters that I should consider in weighing up the seriousness of your offending.
32 It is accepted on your behalf that the offending is plainly serious and that it is offending of a kind that has significant social consequences. It is difficult to detect.
33 Your counsel submits that your offending the subject of Charge 2 lacked sophistication in that the package was addressed to you, you were using your correct name and were quite open about what you were doing, albeit that you were using the dark web to communicate the details of your business.
34
Other features are absent and which might otherwise have aggravated the offending.
35 So far as Charge 1 is concerned, your counsel accepts that the offending is serious. It occurred over a quite significant period of time and involved some level of sophistication. He points out, and I accept, that the offending was at a street-level rather than representing a part of some major trafficking enterprise of a kind which attracts the heavier sentences.
36 Your counsel notes that when you were released on bail in November 2020 to attend Odyssey House, you remained there until you left in order to continue your rehabilitation in the community. During the four months and two days that you were there, you did not return any positive results for illicit substances and you participated in the programs that were offered to you.
37 Your counsel seeks to invoke the principles that attend the sentencing of youthful offenders, or young offenders. You are still relatively young. But I have to sentence you as an adult, albeit one who has experienced prison for the first time and is facing a further period of incarceration.
38 It is important for the court to give proper weight to the rehabilitation of a person who does not have a particularly serious criminal record and who has a lot of life ahead of them and for whom there is a public interest in promoting rehabilitation.
39 Your counsel points out that there has been considerable delay in bringing this matter to finality. It is almost three years now since your arrest on 22 May 2020. You have had this hanging over your head for that period of time. It would have been stressful for you. However, it has also given you the opportunity of demonstrating your willingness to engage in rehabilitation involving that period at Odyssey House and 14 months working with the Court Integrated Services Program.
40 Delay is a significant factor and it is the more significant in that you have been able to show that you are at least a good, if not excellent, prospect for rehabilitation if you are able to stay away from illicit drugs in the future. That will very much be in your hands.
41 I am told you have no outstanding matters before any court.
42 It is to your credit that you pleaded guilty and you have done so during the Covid era. You are entitled to credit for the utilitarian benefit of that plea as well as the fact that it indicates remorse on your part. The period during which you have been in custody waiting for this matter to be finalised was through the Covid period during a restricted regime within the prison system that curtailed your ability to work and severely restricted your ability to contact your family. You are entitled to a significant reduction of sentence arising from that fact and from the fact that the Covid pandemic is still in existence and that you can expect more restrictive conditions of incarceration for the foreseeable future.
43 Your counsel made submissions about, and drew my attention to, a number of authorities which have some similarities to your case. It is common ground between your counsel and Mr Botros for the prosecution that I need to consider other sentencing orders throughout the Commonwealth when I am dealing with Commonwealth offences. I have been assisted by both counsel in that regard.
44 The prosecution tendered an outline of submissions on the plea which became Exhibit B. Mr Botros underscored features of your role in the trafficking business the subject of Charge 1: that you sourced the drugs to be trafficked; that you established and managed the online store you operated during the period of the offending; that you personally posted the drugs to your customers; and that it was you who reaped the profits. You were the principal of the business and the profiteer from the business. It seems that you were solely responsible for managing that drug trafficking operation.
45 In addition, Mr Botros pointed out that the business occurred over a little under 10 months. You trafficked the drugs to end customers on the 265 occasions set out in the annexure to the outline of plea submissions. Your business had commercial features when you advertised selling points such as, "free sample"; "fentanyl free"; and "Australia's no 1". You also relied on reviews of your business published on the dark web and the goodwill that those reviews generated. You developed your business practices over time, from handwritten notes to printed labels.
46 It was submitted by Mr Botros that your offending was sophisticated and difficult to detect. You utilised the dark web and cryptocurrency to maintain anonymity. The only evidence obtained against you was as a result of you taking photos of videos of your trafficking activity. You used those as, effectively, a record of your transactions
47 The Crown submitted that, notwithstanding that there was no specific quantity alleged in the offending the subject of that charge, the offending sits at the upper end of objective seriousness for that offence. I am not convinced that that is entirely true because this was, albeit having the features outlined by the Crown that I have just referred to, really a street-level enterprise and the quantities involved in individual transactions, according to the evidence, were in the main quite small. However, it still seems to be a serious offence of its kind and probably sits in the mid-range.
48
Mr Botros urged me to give proper weight to denunciation, general deterrence, just punishment and the protection of the community which, he submitted, were all relevant sentencing objectives. He, like your counsel, drew my attention to the principles that are referred to in the case of
R v Nguyen; R v Pham, which have been accepted and adopted by the Court of Appeal in Victoria. He drew my attention to the importance of general deterrence in cases of importation of illicit drugs and the fact that in terms of the lower end of the scale of purity, the 99.8 grams that you imported was a very considerably larger amount than the minimal traffickable quantity of 3 grams. He drew my attention to authorities that underscore the importance of general deterrence in cases of importation of that kind.
49 In dealing with Charge 3, he submitted that money laundering offences of this kind, fitting as they do into the range of offences for money laundering, are towards the top end of the scale reflected in the maximum penalty of imprisonment for 20 years. Although there have been many cases where the amounts of money involved are significantly greater than those the subject of Charge 3, the amount is a not inconsiderable sum and one which should attract a substantial term of imprisonment.
50 As to Charge 2, although the amount of ketamine was very significantly above the minimum marketable quantity, ketamine in itself, it is accepted, does not attract the financial rewards that many other drugs that have been the subject of similar offending attract. That is a relevant factor in determining the seriousness of that offence. Whilst all offences of the importation of illicit substances are serious, it does not seem to me that the quantity of ketamine puts that offending above the lower end of the scale of seriousness of offences of that kind.
51 Doing the best I can to give effect to all of those factors and noting that the prospects of your rehabilitation have the capacity to give the public a measure of protection if you are given the further opportunity of rehabilitation at the end of your sentence. Given your efforts to date since your arrest on 22 May 2020, I propose to give you the opportunity that your counsel sought to persuade me I should consider.
52 I give substantial weight, as I have been required to do by the Court of Appeal, to your plea of guilty and the fact that it occurred during the Covid era. In those circumstances, the sentence that I propose to impose is significantly lower than it might have been for offending of this seriousness.
53 William Patrick Robarts:
- on Charge 1, you are convicted and sentenced to imprisonment for a period of 3 years and 6 months;
-on Charge 2, you are convicted and sentenced to imprisonment for a period of 20 months;
-on Charge 3, you are convicted and sentenced to imprisonment for a period of 3 years.
54 The sentence on Charge 1 will start today.
55 The sentence on Charge 2 will also start today.
56 The sentence on Charge 3 will commence on 10 March 2024.
57 The total effective sentence is, therefore, imprisonment for 4 years.
58 I fix a non-parole period of 2 years and 4 months.
59 I declare 190 days of pre-sentence detention as a time to be reckoned as served on the sentences that I have imposed.
60 But for your pleas of guilty, I would have sentenced you to imprisonment for a period of 6 years with a non-parole of 3 years and 10 months.
61 I make the order for forfeiture in accordance with the draft with which I have been provided.
62 Counsel, have I got that sentencing right in a technical way? Does that comply with the law, Mr Botros?
63 MR BOTROS: I believe so, Your Honour, but can I have a minute to consider it on?
64 HIS HONOUR: You can. And you can take instructions if you need to do so. I prefer to get these things right now rather than have to be fixed by another court.
65 MR BOTROS: It's just the arithmetic. I need a few minutes.
66 HIS HONOUR: I'll stand down for a few minutes. How long do you think you will need?
67 MR BOTROS: Ah, 10 minutes, at the most, Your Honour.
68 HIS HONOUR: Ten minutes. Yes, all right. Are there any other orders that I need to consider apart from those that I have made?
69 MR BOTROS: No, Your Honour. Just the forfeiture.
70 HIS HONOUR: All right. I take it, Mr Tom, you have nothing else to say about it?
71 MR TOM: No. No, Your Honour.
72 HIS HONOUR: All right, well I will allow you an opportunity, Mr Botros.
73 MR BOTROS: Thank you, Your Honour.
74 HIS HONOUR: And I'll come back in 10 minutes.
(Short adjournment.)
75 MR BOTROS: Thank you for that time, Your Honour. There is no technical issue that we can see with Your Honour's sentence.
76 HIS HONOUR: Thank you. I confirm the orders that I have pronounced and that is the end of the matter, I think.
77 MR BOTROS: If Your Honour, pleases.
78 HIS HONOUR: Adjourn the court, please. I thank counsel.
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