CDirector of Public Prosecutions v Wilson
[2025] VCC 885
•27 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00910
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| BENJAMIN JOSEPH WILSON |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2024 | |
DATE OF SENTENCE: | 27 June 2025 | |
CASE MAY BE CITED AS: | CDPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 885 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Attempt to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported – Possession of a drug of dependence – Grave offending – 629kg pure of liquid methamphetamine – 6,166g of 1,4-Butanediol possessed – Very significant role in transport and storage of illicit drugs – Use of legitimate transport company as cover for criminal activities – High moral culpability – Early guilty plea – Prior good character – Strong family support – History of substance abuse – Profit motive – Delay – Very good prospects of rehabilitation – Custodial hardship
Legislation Cited: Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic)
Cases Cited:R v Nguyen; R v Pham (2010) 205 A Crim R 106 – Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 – Rodriguez v DPP (Cth) (2013) 40 VR 436 - R v Kilic (2016) 259 CLR 256 - DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428 – Hili v The Queen (2010) 242 CLR 520 – DPP v Zhuang (2015) 250 A Crim R 282 - DPP (Cth) v Thomas (2016) 53 VR 546
Sentence: Total effective sentence of 17 years imprisonment with a Commonwealth non-parole period of 9 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Sprague | Sarah Gleisner, Commonwealth Office of Public Prosecutions |
| For the Accused | Mr I Hill KC Mr S Norton | Stary Norton Halphen Criminal Law Specialists |
HIS HONOUR:
Introduction
1Benjamin Joseph Wilson, you have pleaded guilty to an indictment containing one charge of attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine, reasonably suspected of having been unlawfully imported,[1] and one charge of possessing a drug of dependence, namely 1-4, Butanediol.[2]
[1] Contrary to s11.1(1) and s 307.5(1) of the Criminal Code (Cth).
[2] Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘DP&CSA’).
2The maximum penalty for the offence of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported is imprisonment for life. The maximum penalty for the offence of possessing a drug of dependence (in the circumstances of this case) is 5 years’ imprisonment or not more than 400 penalty units.
The facts
3The prosecution filed a Prosecution Opening for Plea dated 29 October 2024,[3] which your senior counsel agreed I could treat as a statement of agreed facts in sentencing you for these offences.
Charge 1: Attempting to possess unlawfully imported border controlled drugs
Overview of the offending
[3] Exhibit (‘Ex’) P1.
4You participated in a syndicate that sought to import a consignment containing 629kg of pure liquid methamphetamine and distribute it to criminal syndicates in Australia.
5The co-accused in this matter include Justin Barnett. The downstream syndicate contained other members including Hung Nguyen, Hien Pham and Channara Thong, with whom you had no contact. You only interacted with Barnett whilst the other co-accused were unknown to you.
6Unknown to you and the other syndicate members, the consignment was intercepted and substituted by police before it came into the syndicate’s possession.
7Your role within the syndicate was to facilitate the transport and storage of the consignment to various storage locations and downstream recipients. This conduct was carried out under the direction of Barnett who was the primary onshore facilitator for the consignment.
8At the time of the offending, you were a franchisee of Pack & Send Laverton (‘Pack & Send’), located at Little Boundary Road in Laverton North. You used your employment and your access to Pack & Send resources to facilitate the transport and storage of the substituted consignment.
Background – Events prior to your involvement
9On 17 December 2022, logistics provider International Cargo Express received an online submission relating to a new importation. The submission described the consignment as ‘canola oil’, to be shipped from Vancouver to Melbourne. International Cargo Express then handled the customs clearance.
10On 20 January 2023 in Vancouver, the Canadian Border Services Agency intercepted the consignment, which comprised a shipping container containing 18 pallets of ‘Sunfrie Canola Oil’. Each pallet had 60 x 17.3-litre jugs on it.
11Presumptive testing identified that the jugs in three of the pallets (i.e. 180 jugs in total) contained methamphetamine, in liquid totalling approximately 2,907kg. The remaining 15 pallets contained canola oil.
12The three pallets that contained liquid methamphetamine were labelled J0149 (pallet 149), J0150 (pallet 150), and J0151 (pallet 151).
13The methamphetamine was seized in Canada and the Royal Canadian Mounted Police reconstructed the entire consignment with legitimate canola oil. The consignment was then shipped to Melbourne aboard a cargo vessel.
14Later analysis conducted by Australian authorities of the seized liquid confirmed the presence of methamphetamine. The minimum net weight of liquid present was 2,743.6kg, with a calculated minimum purity of 22.9%. Accordingly, the minimum total pure weight of methamphetamine in the three relevant pallets was 629 kilograms.
Circumstances of the offending
15After the consignment arrived in Australia, Barnett coordinated the movement and storage of the contents. He communicated the plans to you, and you carried out the various transport arrangements via Pack & Send. Portions of the consignment were later separated, transported and made available to downstream recipients or syndicates (including the Nguyen, Thong and Pham group, and a person or persons in Sydney). The logistics arrangements were carried out by you through the use of Pack & Send.
16As detailed in the prosecution opening for plea, your involvement occurred over a period of nearly three months, but particularly over an intense period of communication and various movements between 1 March 2023 and 6 April 2023. You frequently communicated with Barnett by text messages, telephone calls and emails.
17The prosecution allege, and I accept, you played an important and trusted role in the chain from importation to end-user distribution. You used your position with Pack & Send to facilitate transport and storage of the substituted consignment, and your position enabled the use of the cover of a legitimate transport business, whilst giving Barnett and others the assurance of having a trusted insider involved throughout the process. Nonetheless, I accept your senior counsel’s submission that the prosecution cannot dispute the fact you were recruited for this operation by Barnett.
Key events and your conduct
18In carrying out your role, over a nearly three month period, you participated in the following events and movements of the consignment, as arranged and instructed by Barnett. Your conduct included:
(a) Sending extensive text messages and having numerous telephone conversations with Barnett in relation to the various movements, as well as occasionally meeting him in person.
(b) Emailing Barnett who was posing as ‘Mark Burne of AP Trading’, including to and from Pack & Send’s email address.
(c) Engaging in telephone conversations and messages with representatives of Pack & Send who were not criminally involved, to arrange the various movements of the consignment.
(d) On one occasion, undertaking the physical collection and transport of the consignment.
19Between 1 March 2023 and 6 March 2023, Lawson Sideloader Services collected the substituted consignment from the DP World dock terminal in Port of Melbourne. The substituted consignment was transported to and retained in storage at Lawson Sideloader Services located in Dandenong South.
20On 8 March 2023, an attempt was made to deliver the substituted consignment to Mordialloc Caravan & Boat Storage. However, this attempt was unsuccessful as Mordialloc Caravan & Boat Storage did not have room for a 40-foot container. The substituted consignment was returned to Lawson Sideloader Services.
21On 10 March 2023, the substituted consignment was collected from Lawson Sideloader Services by a truck and delivered to Norman Carriers in Laverton where it was stored. You organised this transportation.
22Between 11 March 2023 and 14 March 2023, you and Barnett debriefed in relation to the consignment movements to date and discussed cryptocurrency accounts.
23Between 15 March 2023 and 16 March 2023, the substituted consignment was collected from Norman Carriers. The substituted consignment was delivered and unloaded at Bayside Storage in Moorabbin. You arranged for this transportation to occur through Pack & Send.
24On 19 March 2023, Barnett departed Australia and flew to Bangkok, Thailand.
25Between 23 March 2023 and 22 May 2023, after the substituted consignment was moved from Norman Carriers to Bayside Storage, the operation moved into a distribution phase, whereby portions of the consignment were retrieved and further transported. This took place for apparent testing purposes, and then for the purpose of distributing the consignment to associates and other syndicates for processing and further distribution.
26On 27 March 2023, on instructions from Barnett you organised the transport of pallet 149 by Pack & Send. Pallet 149 (60 boxes) was collected from Bayside Storage by Pack & Send and then taken to Pack & Send’s premises. The pallet still contained 60 boxes of substituted liquid methamphetamine. A total of 20 boxes were collected from Pack & Send by a person identified as ‘Tomas’ in a HiAce van. Another Pack & Send employee took the remaining 40 boxes from Pallet 149 in a van to Somerton. The location for delivery was provided by Barnett. The delivery attempt was unsuccessful, and the 40 boxes were returned to Pack & Send.
27On 30 March 2023, at around 5:32pm, you were engaged in a phone call with Barnett in which you both discussed the failed delivery to Somerton, transport of the pallet to Sydney, that Aggarwal (the owner of Pack & Send) was speculating that the pallet was ‘coke, or liquid coke’, the testing of the contents of the jugs which had revealed there was ‘nothing there’, and whether the contents had been swapped or robbed. The conversation also included discussions in relation to transporting the balance or other part of the substituted consignment to Sydney. Before this plan was implemented, there were further lengthy conversations between you and Barnett.
28On 4 April 2025, at around 7:41am, you had a telephone conversation with Barnett. The conversation included discussions regarding the contents of the consignment, payment for your involvement along with Barnett’s, using unsecured communications, and the transport of the next portion of the consignment. You said, ‘we’re not gonna get caught’, and Barnett said he was confident that they had not been intercepted by law enforcement because there had been no action so far.
29You advised Barnett that you both would not get caught from your side, to which Barnett agreed and stated that if it was going to happen, it would’ve already happened on the first run.
30Following this, you and Barnett exchanged the following messages:
Barnett: ‘A hundred per cent. You know what? I can say on the phone, I’ve got fucking 700 keys of ice. I don’t give a fuck. I can say that. You know why, because I’m confident bro, nothing happened’.
Wilson: ‘That’s exactly right’.
31On 4 April 2023, instructions were received from Barnett in relation to arrangements for transport to Sydney. At around 2:31pm, you attended Bayside Storage in a van, and pallet 151 (which by this time was split into two pallets of 30 boxes) was loaded into the van. You then returned to Pack & Send where the split pallet was unloaded. That afternoon, you informed Barnett of the unloading and discussed payment.
32Between 5 April 2023 and 6 April 2023, you arranged transport of part of the consignment to Sydney, as requested and directed by Barnett. On 5 April 2023, at around 12:13pm, a truck you had arranged for attended Pack & Send and the three pallets were loaded onto the truck. The three pallets contained a total of 100 boxes from the consignment, namely 40 boxes from pallet 149 containing fully substituted material, and pallet 151 (60 boxes) containing canola oil. The truck travelled to Sydney that evening and arrived on 6 April 2023 with the three pallets. You were in frequent contact with Barnett in relation to the transport of the pallets and their arrival in Sydney.
33On 22 May 2023, the remaining 16 pallets of the consignment, which included pallet 150, were collected from Bayside Storage and transported by truck to StoreLocal Sunshine. Two of those pallets contained the substituted liquid methamphetamine. The 16 pallets were unloaded into a storage unit at StoreLocal. You were not responsible for arranging this transport. Instead, you were notified by Barnett about the collection on 22 May 2023.
34You also communicated with Barnett via text message prior to the collection. At around 8:41am, Barnett messaged you that ‘they picking up there shit’ and ‘we know what the outcome is soon’.
35The remainder of the total consignment, including the two pallets which had originally contained 419kg of pure methamphetamine, was delivered to a downstream syndicate involving Nguyen, Thong and Pham.
36By 22 May 2023, your involvement concluded in relation to the storage and distribution of the consignment.
Charge 2: Possessing a drug of dependence
37On 8 June 2023, in a phone call you asked Barnett if he could get 5 litres of ‘superglue’ as soon as possible and stated it was the ‘usual story’. Barnett responded to you by stating that he would ask his friend.
38On 13 June 2023, you communicated with Barnett in relation to your requested supply of ‘five litres’ of ‘superglue’. Bartnett advised you by text message that he could get it to you that day for $800 per litre. You told him to go ahead, and you later met Barnett at approximately 6:30pm on St Kilda Road in Melbourne. You messaged Barnett later that night and told him, ‘Good shit mate’.
39The next day, police found a quantity of clear liquid containing 6,166.6 grams pure of 1,4-Butanediol at your residence, including the 5 litres you took possession of on 13 June 2023.
Arrest and interview
40On 14 June 2023, police executed a search warrant at your residential address in Melbourne and you were placed under arrest. During the search, police located and seized the following items:
(a) Ten 500ml bottles with clear liquid in ‘Tsingtao’ box containing 1,4-Butanediol, with a net weight of 5353.2 grams.
(b) Two ‘Gatorade’ bottles and two gelatine capsule bottles with clear liquid containing 1,4-Butanediol, with a net weight of 813.4 grams.
(c) $16,310 in cash.
41The total weight of 1,4-Butanediol found in your possession was 6,166.6 grams (Charge 2).
42After your arrest, you were taken to the Australian Federal Police headquarters in Melbourne where you made a ‘no comment’ record of interview, as was your right.
Offence seriousness
43Dealing first with attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported (Charge 1), I observe this offence is of the utmost seriousness as it carries a maximum penalty of life imprisonment. This unequivocally indicates the seriousness with which the legislature, on behalf of the Australian community, views this offence.
44Principles of general deterrence and denunciation are prime considerations in sentencing for this offence. Appellate courts have repeatedly held that involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.[4]
[4] Wong v R (2001) 207 CLR 584, 607–08 [64] (Gaudron, Gummow and Hayne JJ) (‘Wong’).
45Moreover, these considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence. Stern punishment will be warranted in almost every case.[5] This is largely because of the difficulty in detecting offences of this nature and the great social consequences that flow from the movement of illicit drugs into Australia and their distribution within Australia.[6]
[5] DPP (Cth) v Thomas (2016) 53 VR 546, 613 [193] (Redlich, Santamaria and McLeish JJA) (‘Thomas’); DPP (Cth)v De La Rosa (2010) 79 NSWLR 1, 49–51 [207]–[215] (McClellan CJ at CL).
[6] Wong 607–08 [64].
46In sentencing you for this offence, I must apply a number of propositions applicable to sentencing for drug importation and attempted possession offences which were distilled by the NSW Court of Criminal Appeal in R v Nguyen; R v Pham,[7] and which were approved by the Victorian Court of Appeal in Nguyen v The Queen; Phommalysack v The Queen[8] and in later cases.[9] These propositions are as follows:
[7] (2010) 205 A Crim R 106, 126–28 [72] (Johnson J, Macfarlan JA and R A Hulme agreeing).
[8] Phommalysack v The Queen (2011) 31 VR 673, 681–83 [33–34] (Maxwell P, Redlich JA agreeing.
[9] E.g. Thomas [192]; Rosales v The Queen [2018] VSCA 130 [21] (Priest and Beach JJA); DPP (Cth) v Brown [2017] VSCA 162 [27]–[28] (Maxwell P, Santamaria JA and Beale AJA); DPP (Cth) v Masange and Kachunga [2017] VSCA 204 [139] (Beale AJA); Hoang v The Queen [2018] VSCA 86 [34] (Priest and McLeish JJA); Rohen v The King [2024] VSCA 1 [122] (Boyce JA, Priest and Taylor JJA agreeing).
(a) The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
(b) Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.
(c) It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
(d) Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
(e) Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
(f) As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
(g) The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
(h) The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
(i) Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise, the interests of general deterrence are not served.
(j) The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
(k) Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
(l) Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
(m) Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than offences of importing the drugs.
47Where the evidence establishes the acts performed by an offender and their position within the criminal organisation, the offender’s criminality is to be assessed by a consideration of both the actions of the offender and the role occupied by him within the organisation.[10] However, labels should not divert the focus from the offences charged and an assessment of what the offenders did.[11] Where it is difficult to categorise the role of an offender because the full nature and extent of the enterprise and conduct is not known to the court, the focus must then be upon the degree of criminality of the known acts performed, and their importance in accomplishing the organisation’s criminal purpose.[12]
[10] Pham v The Queen; Tang v The Queen [2012] VSCA 101 [4] (Redlich JA) (‘Pham’), cited with approval in Samuels-Orumnwense v The Queen; Osifo v The [2015] VSCA 152 [88] (Priest JA, Maxwell ACJ and Redlich JA agreeing).
[11] R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan).
[12] Pham [5]–[6].
48I agree with the prosecution submission that, when the principles summarised above and the factors outlined in s16A(2) of the Crimes Act 1914 are applied to the circumstances of this case, it is clear your offending conduct is objectively extremely serious. Your senior counsel fairly accepted that your ‘overall criminality in this scheme is high’.
49Over a period of nearly three months you attempted to possess a huge amount of methamphetamine: the consignment contained 629kg of pure methamphetamine. This is 838 times the applicable commercial quantity threshold of 0.75kg. The potential harm to the community that could be wrought by the sale of this quantity of drugs cannot be overstated.
50This very large quantity of illicit drugs was extremely valuable, with an estimated wholesale value of between $75 to $79 million and a ‘street value’ of approximately $149 million. The value of the drug is relevant to the commerciality of your offending, your motivation to commit the offence and the temptation for others to commit similar offences.[13]
[13] See DPP (Cth) v Maxwell (2013) 228 A Crim R 218, 226–27 [34]–[35] (Maxwell P, Weinberg and Priest JJA).
51It is to be inferred as a matter of principle and common sense that your motivation for the offending was financial gain, unless there is evidence to the contrary. In this case there is evidence of expected financial gain in the form of communications between you and Barnett, which included references to your being paid $25,000 for your involvement. This was later reduced by Barnett to $12,500. I accept that ultimately you received nothing for your involvement in this offending.
52Your involvement was extensive and not isolated or sporadic. Over a period of almost three months, you were frequently engaged in facilitating the transport and storage of the consignment to the various storage locations under the direction of Barnett, and then the distribution of parts of the consignment to the downstream recipients. The facts of your involvement are summarised in the agreed prosecution opening, including the very many text messages, phone calls, and movements you engaged in.[14]
[14] Ex P1.
53So far as your role is concerned, I accept the prosecution submissions regarding your role within the syndicate was to facilitate the transport and storage of the consignment to various storage locations under the direction of Barnett who was ‘the primary onshore facilitator’. While Barnett had a higher role than yours, your role involved a degree of responsibility and was crucial to the overall success of the criminal enterprise. At one stage you referred to yourself as the ‘sous chef’. You were in effect Barnett’s enthusiastic deputy, so far as the transport and storage of the consignment was concerned. You played a critical and trusted role in the supply chain from importation to end-user distribution.
54However, I accept there is no evidence you were involved in the actual importation of the methamphetamine; nor was it intended that you would be involved in the extraction of the methamphetamine from the canola oil, nor that you would have any ongoing involvement in the distribution of the drugs once extracted.
55Moreover, you exploited your position as a franchisee of Pack & Send, a legitimate parcel courier and freight delivery company, thereby providing a cloak of legitimacy to this nefarious criminal enterprise. You were Barnett’s ‘trusted insider’ in that company throughout the entire process.
56The prosecution accept you were reckless to the consignment containing a border-controlled drug from the commencement of the offending and you did not know that it contained methamphetamine until you were told this by Barnett on 4 April 2023, when, in a telephone conversation with you, he boasted that ‘I’ve got fucking 700 keys (sic) of ice’. You responded, ‘That’s exactly right’. From that point you were aware the consignment contained a very large quantity of illicit drugs. Given this knowledge you did not withdraw from the criminal enterprise, but continued performing your role for a further seven weeks. You and Barnett also discussed testing the substance in the jugs, and raised concerns that the contents might have been ‘swapped’ or ‘robbed’.
57Overall, I consider the present offending to be a grave example of this offence and I assess you moral culpability as being very high.
58So far as your possession of the 1,4-Butanediol (Charge 2) is concerned, the quantity you possessed was 6,166.6 grams. This is a large quantity, being more than 123 times the trafficable quantity of 50 grams and over 3 times the commercial quantity threshold of 2.0kg. It is important to note you are charged with possession and not with trafficking in this drug.
59The Victorian Court of Appeal has reiterated that the sentencing regime for drug offences is quantity-based and, while the quantity possessed by you is not determinative of my assessment of the objective gravity of this offence, it will always be of importance.[15] All things being equal, the greater the quantity possessed, the more serious the offence.[16] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[17]
[15] See e.g. DPP (Cth) v KMD [2015] VSCA 255 [36] (‘KMD’), [64](Maxwell P, Weinberg and Beach JJA); DPP v Fatho and Ors [2019] VSCA 311 [70] (Maxwell P, Priest and Beach JJA) (‘Fatho’); Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’). Although I note these cases involve the more serious offence of trafficking a drug of dependence.
[16] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); KMD 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143. Although I again note these cases involve the more serious offence of trafficking a drug of dependence.
[17] Gregory 8 [24].
60This is a single date offence. You do not dispute you possessed this drug for a purpose relating to trafficking in 1,4-Butanediol.[18] You commenced sourcing 5 litres of the drug from Barnett some five days before the day you purchased it on 13 June 2023 for $800 per litre.
[18] DP&CSA s 73(1)(c).
61While this offence is nowhere near as serious as Charge 1, it is a serious enough example of the offence, particularly given the quantity of the drug you possessed. Accordingly, I assess your offending as being in the mid-range for offences of this type.
62Clearly, denunciation, general deterrence and just punishment must be given significant weight in sentencing you for both offences.
Personal circumstances
63You were assessed on 3 October 2024 and 11 October 2024 by Dr Mathew Barth, a forensic psychologist engaged by your legal representatives. Dr Barth prepared a Psychological Report dated 30 October 2024, which summarises your personal circumstances.[19]
Family history
[19] See Ex D2.
64You were born in March 1991 in Australia and were aged between 31 and 32 years at the time of the offending. You are presently 34 years of age. You are the elder of two brothers. You were raised on a fruit farm in Ballarat. You had a positive childhood with no instances of violence, substance abuse or mistreatment in the family home. You told Dr Barth you were ‘very lucky’ to have your family and that you had a ‘great upbringing’. Dr Barth reports that you did not suffer from any significant childhood illnesses and your cognitive and physical development progressed normally.
65When you were about 17 years old, you left your family home to attend university in Melbourne. Despite moving away, you maintained a close relationship with your family.
66In approximately 2022, your mother passed away from lung cancer. Dr Barth reports that you had an ‘intense grief reaction’ to your mother’s death. You remain in contact with your father and younger brother Jacob. You told Dr Barth they are aware of your current predicament and, despite their disappointment, they are supportive of you.
Education and employment history
67You attended private Catholic schools in Ballarat and completed both primary and secondary education with good academic results. You told Dr Barth you experienced some issues with comprehension during your early education years but noted you compensated for this by ‘working harder’. You recalled that you were a ‘quiet student’ with a ‘small circle of friends’, who felt insecure in social situations and often felt inadequate when compared to your peers. You also told Dr Barth that due to your quiet and reserved nature, you experienced some verbal harassment.
68Subsequently, you moved to Melbourne where you completed a Bachelor of Business Management and a Master of Business Administration. Initially you supported yourself financially by working as an English tutor. Following the completion of your degrees, you were employed in sales and later gained work as a business manager at a wholesale hardware company. You recall that you stayed in this role for approximately five years.
69Subsequently, you established your own property development business with your former wife. You completed a Diploma of Construction Management to assist with your knowledge in this area.
70In October 2019, you were involved in an accident on a building site where you suffered a serious back injury. Your rehabilitation was very complex. You underwent three surgical procedures over the next couple of years and you were placed on high dose opioid medication for the relief of severe pain. You were told initially that it was unlikely you would be able to walk again. As a result of this injury, you were unable to work for over two years and this contributed to financial problems.
71Later, you purchased a franchise in a logistics company called ‘Pack & Send’. You told Dr Barth the business expanded rapidly and was very successful. Ultimately, about two-and-a-half-years later, you sold the business. Apparently the new owners had difficulty settling on the full amount and they asked you to continue working in the business until they were confident in operating it themselves. You explained the situation became problematic when the new owners continued to delay final payment. Additionally, you told Dr Barth you lost $128,000 which you had invested in cryptocurrency after you were ‘hacked’. This loss increased your financial dependence on the new owners of Pack & Send.
72Dr Barth reports you have been very active during your time on remand noting you have been employed in several positions of responsibility such as a gym billet, a yard billet, a unit billet, and an education billet. Whilst on remand you completed a ‘Job Skills Preparation’ course. You have expressed a desire to establish a new career when you are released from custody.
Relationship history
73You met your former wife at university and you were married in 2015. You do not have any children. You divorced in July 2022. Your former wife received most of the matrimonial assets. After your divorce, you had two other relationships.
Alcohol and substance use
74You began drinking alcohol when you were 18 years old. You described yourself to Dr Barth as a mild social drinker during your late teens and early twenties. During 2014, your alcohol consumption increased due to work stress and the demands of being in a business manager position whilst also completing your MBA. After your back injury in 2017, you stopped drinking for a short period of time because of the strong pain medication you were taking at the time.
75You recommenced heavy alcohol use several months later due to the stress of conflict with your former wife’s father and the increasingly antagonistic nature of your marriage. You acknowledged to Dr Barth that you consumed copious amounts of alcohol on a daily basis, which continued unabated in the aftermath of the marriage separation. This pattern of alcohol abuse continued until 2021 when you recalled that ‘GHB took over’.
76You reported you began using Gamma-hydroxybutyrate (‘GHB’) in 2021. This substance abuse escalated following your mother’s death in 2022. You described using GHB heavily and you reached a point where you used ‘60ml a day’. You felt you ‘needed it just to have the energy to keep going’. You admitted to becoming increasingly involved in the drugs subculture and socialising with individuals who were involved in criminal activity. Your substance abuse remained problematic up until your arrest in June 2023.
77Dr Barth reports you have abstained from the use of illicit substances during your time on remand. You have completed a 15-hour drug course and the ‘Changing Gears’ course. Dr Barth notes you have implemented positive changes to your lifestyle through a healthy diet and regular exercise and you have expressed a strong desire to consolidate your abstinence in the long-term and complete more intensive substance abuse treatment at the earliest opportunity.
Mental health and medical history
78In your assessment with Dr Barth, you reported that your first experience with major mood disturbance occurred in 2016 when your former wife’s parents lived with you in your home. You described that verbal abuse from your father-in-law contributed to acute anxiety, a depressed mood and suicidal ideation. While you described periods of suicidal ideation, you did not make any active attempts at self-harm.
79You told Dr Barth that the impacts of your back injury and the breakdown of your marriage in 2017 exacerbated your mental health issues. You described becoming depressed, lacking in energy, being pessimistic in your outlook, irritable, socially withdrawn, and experiencing ongoing sleep disturbance due to intrusive nightmares of the accident which had caused your back injury. On your account, this bout of depression and anxiety lasted for several years.
80You recalled that your mental health was further impacted by the loss of your mother in 2022. You described feeling a profound sense of loss and recalled that this was when you ‘really spiralled out of control’ and ‘completely lost’ your ‘compass’. You abused drugs and alcohol as a dysfunctional coping mechanism for your mental health problems and physical pain resulting from your back injury. You told Dr Barth this culminated in numerous overdoses on GHB and several hospital admissions.
81In the recent past you have consulted a number of mental health professionals. You told Dr Barth you were diagnosed with post-traumatic stress disorder and were prescribed medication for this condition.
82When Dr Barth assessed you, he found the most salient features of your mental health were depressive and anxiety-related symptoms of moderate intensity. He opines these symptoms were primarily a reaction to the seriousness of this present legal proceeding. He describes you as a person whose intelligence falls in the normal range, perhaps towards the higher end. In this regard, Dr Barth opines that despite your solid intelligence, you remain an emotionally immature man who has struggled with your sense of self-worth. Dr Barth recognises that in recent years, this appears to have left you vulnerable to associating with negative peers and engaging in reckless behaviour to gain the acceptance of your social group.
83Dr Barth concludes that you have had considerable difficulty in managing personal stressors and that you have engaged in various ‘acting out behaviours’ in a desperate attempt to alleviate your distress. He describes your substance abuse as a key example and notes this has increased your propensity to engage in impulsive and reckless behaviour as a dysfunctional coping mechanism.
84While it is accepted Verdins principles[20] are not enlivened in your case, I do take into account the opinions expressed by Dr Barth regarding your mental health status at various times in the past as part of your general circumstances.
[20] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Mitigating circumstances
Early plea and remorse
85You first indicated an intention to plead guilty to the present charges at a committal mention held in the Magistrates’ Court on 5 June 2024 and you pleaded guilty to the current indictment before me on 7 November 2024. Accordingly, you have pleaded guilty to these charges at the earliest opportunity, and I take this into account in your favour.
86Your pleas of guilty have significant utilitarian benefit and indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice, by saving the time and expense of the matter running as a trial and avoiding the need for witnesses to attend to give evidence.
87Moreover, I accept your senior counsel’s submission that you are developing a degree of insight into your personal circumstance which led you to commit such serious crimes and you have demonstrated some degree of true contrition and remorse for your offending conduct. This is evidenced by your brother’s character reference,[21] the reference from Sister Mary O’Shannassy,[22] what you told Dr Barth,[23] and the viva voce evidence given by Mr Terry Lindon, an Alcoholics Anonymous support worker, who has visited you a number of times whilst you have been on remand and who believes you are ‘sincerely remorseful’.
[21] Part of Ex D4. I note your brother present in court during the plea hearing.
[22] Ex D3. Sister O’Shannassy was also present in court during the plea hearing.
[23] Dr Mathew Barth, ‘Psychological Assessment of Mr Benjamin Jospeh Wilson’, 30 October 2024 (Ex D2) (‘Barth Report’) [27], [34], [44(1)].
Rehabilitation
88Whilst on remand, you have used your time advantageously by working in various responsible roles as a billet[24] and by engaging in a number of educational courses and programs. Your counsel provided me with a number of certificates that attest to your successful completion of:[25]
(a) Certificate I in Skills for Vocational Pathways at Box Hill Institute.
(b) The ‘Ice and Me’ program.
(c) The ‘Changing Gears’ program.
Good character
[24] See e.g. Ex D5.
[25] Ex D6.
89Your prior criminal history is limited to one relatively minor driving offence which is of no relevance in the current proceedings. I have had regard to the eight character references tendered on your behalf at the plea.[26] I accept you are a person of otherwise good character. However, as the authorities make clear, limited weight is to be given to this circumstance as a mitigating factor.[27]
Prospects of rehabilitation
[26] Ex D4.
[27] See R v Gent (2005) 162 A Crim R 29, 44 [65] (Johnson J, McClellan CJ at CL and Adams J agreeing); DPP v D’Alessandro (2010) 26 VR 477, 483–484 [21] (Harper JA, Redlich and Williams AJA agreeing); Mouscas v R [2008] NSWCCA 181 [37] (Price J, Allsop P and James J agreeing); Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [35] (Tate JA, Sifris AJA agreeing); R v Gajjar (2008) 192 A Crim R 76, 81 [29] (Maxwell P, Nettle and Weinberg JJA); Garside [63].
90I consider your prior good character, your level of remorse, your degree of insight, your family support and the encouraging approach you have adopted to the time you have spent in custody, auger well for your future prospects of rehabilitation, which I assess as being very good. Ultimately, much will depend on your ability to remain drug-free upon your release from custody.
Burden of imprisonment
91You have been remanded in custody since your arrest on 14 June 2023, a period of 744 days. Your counsel submitted your spinal surgery has left you with six infused vertebra as well as ongoing pain and mobility issues. Medical records were tendered in support of this submission.[28] While, I accept the burden of custody will to a small extent weigh more heavily on you than a prisoner in normal physical health,[29] I have no reason to find that you will be unable to access appropriate medical treatment and pain relieving medication whilst in custody. Moreover, it is apparent your medical condition has not adversely impacted your capacity to engage in employment as an education billet five days per week and to participate in educational courses and programs.
[28] Ex D7.
[29] R v Van Boxtel (2005) 11 VR 248.
Delay
92The effect of delay is a mitigating circumstance in your case. It has now been just over two years since you were arrested and charged in relation to these offences.
93There will always be some delay in prosecuting cases of this kind, but here there has been more than the usual delay which was beyond your control. This is exemplified by the delay of some seven months between your plea hearing on 7 November 2024 and this matter being listed for sentence today.
94The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[30] As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[31]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[32]
[30] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
[31] (2013) 40 VR 436.
[32] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
95So far as your rehabilitation during the period of delay is concerned, whilst on remand you have had the opportunity to abstain from the use of illicit substances and remediate your mental health conditions. It is much to your credit that you have used this time to engage in productive employment and drug rehabilitation programs. It is crucial to your future prospects of rehabilitation that you remain drug free upon your release from custody and continue to engage in substance abuse and psychological treatments as recommended by Dr Barth.[33]
[33] Barth Report (Ex D2) [46].
96So far as delay akin to punishment is concerned, since you were arrested and charged in relation to these offences you have had the prospect of a very significant sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you significant stress and anxiety, and this has had an adverse effect on your mental health. I take these effects of delay into account in your favour.
Application of sentencing principles
97In sentencing you on Charge 1, I have had regard to the provisions of Part 1B, Division 2 of the Crimes Act 1914 (Cth) (‘the Commonwealth Act’), aspects of State sentencing laws as applied by the Judiciary Act 1903 (Cth) and common law principles where they continue to apply. I have had particular regard to s 16A(1) and s 16A(2) of the Commonwealth Act. In sentencing you on Charge 2, I have had regard to the provisions of the Sentencing Act 1991 (Vic) and common law principles where they continue to apply.
98I have also had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic,[34] DPP (Vic) v Dalgliesh (a Pseudonym),[35] and Hili v The Queen[36] and the Victorian Court of Appeal decisions in DPP v Zhuang,[37] and DPP (Cth) v Thomas.[38] Specifically, I have considered the ‘Table of Comparative Cases’ document provided by the prosecutor.[39]
[34] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[35] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[36] (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), quoting Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, 71 [304].
[37] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[38] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[39] Ex P4.
99While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[40]
[40] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
100Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
101The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them and your personal circumstances.
102In sentencing you for these crimes, I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
103General deterrence and denunciation of your conduct must be of primary importance in sentencing you for these offences.[41] I consider I do not need to give any significant weight to specific deterrence or protection of the community in sentencing you. As I observed earlier, I consider you have very good prospects of rehabilitation.
[41] Wong v R (2001) 207 CLR 584 [64] (Gaudron, Gummow and Hayne JJ).
Parity
104Parity is not an entirely irrelevant sentencing consideration in this case.[42] I have had regard to the sentences imposed on the related co-offenders Thong and Pham to the extent they are relevant to your circumstances. Your co-accused Barnett is awaiting a plea hearing listed on 31 July 2025 before another judge of this Court, and the related co-offender Nguyen is awaiting sentence by me.
[42] See e.g. Collins v The Queen [2015] VSCA 106 [23] (Whelan, Santamaria and Beach JJA).
105Both Nguyen and Thong had a sentence indication hearing before me on 9 October 2024. Following this hearing, Thong pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported,[43] and two charges of trafficking in a commercial quantity of a drug of dependence.[44] His plea was considered to be a forensically early plea of guilty.
[43] Contrary to s 11.1(1) and s 307.8(1) of the Criminal Code (Cth).
[44] Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCSA’).
106On 28 February 2025, I sentenced Thong on the attempted possession charge (Charge 1) to a sentence of eight years’ imprisonment.[45] Thong’s involvement with the consignment was to assist in its unloading and recording on a single day for a period of about 4 hours and 20 minutes. At the end of this period, he left the storage area and removed a single container from the consignment, before returning later that day for a short time. His role and personal circumstances are entirely different from yours.
[45] DPP (Cth) v Channara Thong [2025] VCC 189R.
107Pham pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, particularised as being between 22 and 27 May 2023 at Sunshine and other places in Victoria. Pham indicated he would plead guilty at a very early stage in the proceedings at an initial directions hearing held on 23 July 2024. He was sentenced by His Honour Judge Bayles on 24 September 2024 to a total effective sentence of six years’ imprisonment with a non-parole period of three years.[46]
[46] DPP (Cth) v Hein Pham (unreported, Judge Bayles, 28 February 2025) CR-24-01037.
108Pham was 19 years old at the time of the offending and 20 years old at the time of sentence. He was sentenced as a ’young offender’. He had no prior criminal history, and was sentenced on the basis that his involvement was under the direction of Nguyen. Given the differences in the offending and special sentencing considerations which apply to sentencing young offenders, I accept that Pham’s sentence is of little relevance in sentencing you.
109It is important to observe that you and Barnett were involved in a syndicate separate from the downstream syndicates, one of which involved Nguyen, Thong and Pham.
110As your senior counsel accepted, it is beyond argument that the only appropriate sentences on these charges are terms of imprisonment with a non-parole period being fixed on the Commonwealth sentence. I consider a measure of cumulation is called for between the two sentences in order to reflect the significant added criminality involved in your commission of Charge 2. I accept your senior counsel’s submission that I should fix a lower non-parole period in your case than I might otherwise have imposed to reflect you prior good character, very good prospects of rehabilitation and your considerable family support which should operate as a protective measure upon your eventual release from custody.
Mr Wilson
On the charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported (Charge 1) you are convicted and sentenced to imprisonment for 17 years. That sentence is to commence six months after the commencement of the State sentence I am about to impose. This is to allow for 6 months’ cumulation between the two sentences.
On the charge of possess a drug of dependence (Charge 2) you are convicted and sentenced to imprisonment for 18 months.
I consider in the circumstances it is not appropriate for me to fix a non-parole period on the State sentence as you will be serving the concurrent component of that sentence alongside the Commonwealth sentence.
I fix a non-parole period of 9 years and 4 months on Charge 1.
It is my intention by my orders that you receive an overall sentence with the effect that there be a total effective sentence on both charges of 17 years’ and 6 months’ imprisonment and that there be, in effect, an overall non-parole period of 9 years and 10 months. If the orders I have pronounced do not in law have that effect, then I reserve liberty to both parties to apply for orders to amend the sentence to reflect my stated intention.
I declare 744 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), l declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 21 years’ and 9 months’ imprisonment with a non-parole period of 15 years and 3 months.
I am required to explain to you the purpose and consequences of me fixing a non-parole in your case. The purpose of this is to allow for your conditional release from prison before the end of your sentence. If you are released on parole and breach the conditions of that parole order you may be returned to custody to serve the remainder of your sentence.
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