Director of Public Prosecutions (Cth) v Galpin
[2024] VCC 2084
•20 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00914
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JACOB GALPIN |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2024 | |
DATE OF SENTENCE: | 20 December 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v GALPIN | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2084 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Trafficking in a drug of dependence – Knowingly deal with proceeds of crime – Possess precursor chemicals – Middle-range offending – Guilty plea - History of substance abuse – Minor criminal history – Guarded prospects of rehabilitation – Parity
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Gregory (a pseudonym) v TheQueen (2017) 268 A Crim R 1 – Adams v The Queen (2008) 234 CLR 143 – Byrne v The Queen [2020] VSCA 289 – Barbaro v The Queen (2012) 226 A Crim R 354 – Collins v The Queen [2015] VSCA 106 – Sinclair v R [2022] VSCA 180
Sentence: Total effective sentence of 705 days’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms G McMaster Ms B Atkinson | Mark de Crespigny, A/g Commonwealth Solicitor for Public Prosecutions |
| For the Accused | Ms E Clark Mr J Slucki | Fayman Lawyers |
HIS HONOUR:
1Jacob Galpin, you have pleaded guilty to an indictment containing one charge of trafficking drugs of dependence (Charge 2),[1] one charge of knowingly dealing with proceeds of crime (Charge 3)[2] and one charge of possessing precursor chemicals (Charge 4).[3] You were found not guilty by a jury of one charge of importing a commercial quantity of a border controlled drug (Charge 1).
[1] Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[2] Contrary to s 194(2) of the Crimes Act 1958 (Vic).
[3] Contrary to s 71D of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
2The maximum penalty for trafficking drugs of dependence is 15 years’ imprisonment. The maximum penalty for knowingly dealing with proceeds of crime is 15 years’ imprisonment. The maximum penalty for possessing precursor chemicals is 600 penalty units or 5 years’ imprisonment.
The facts
3Operation Oasis involved a joint investigation conducted by Victoria Police, the Australian Federal Police and the Australian Border Force into the importation of drugs. You were one of the targets of this investigation.
4You are 31 years old. At the time of your offending, you were 28 years old. All three charges are put by the prosecution on the basis of joint possession with your co-offender, Stephanie Parker.
5Between 14 to 28 July 2021, police intercepted two mobile phones used by you revealing you were trafficking in drugs of dependence from 139 Chetwynd Street, North Melbourne (‘the Chetwynd Street property’), where you and Ms Parker were residing at the time.
6On 28 July 2021, police executed a search warrant at the Chetwynd Street property where they arrested you and Ms Parker. Police located the following trafficable quantities of drugs:
(a) 1.639 kilograms of 1,4-butanediol.
(b) 98 grams of cocaine.
(c) 39.9 grams of MDMA.
(d) 20.6 grams of amphetamine.
(e) 343.4 grams of cannabis found in 6 zip lock bags.
7Drug paraphernalia, including digital scales, cutting agents, empty capsules, packaging, bottles, containers, foil packs and snap lock bags, was seized during the search.
8The prosecution case, based on the telephone intercept material and your admissions, is that the drugs were in your joint possession with Ms Parker for purposes of sale. Moreover, you were in possession of no less than a trafficable quantity of each drug of dependence. I note that despite the quantities involved you are charged with trafficking simpliciter.
9On 14 July 2021, telephone intercepts captured the following conversations between you and Ms Parker:
(a) On 16 July 2021, you refer to selling ‘1,4’ and ‘GBL’s’.
(b) On 17 July 2021, you received a text asking ‘whats (sic) the coke worth’ and you replied ‘300 a gram’.
(c) On 20 July 2021, you received a text asking for MD at $100/gram and you replied saying it’s still available.
(d) On 18 July 2021, there are messages about selling ‘cold’.
(e) On 18 July 2021 and 20 July 2021, queries were directed to you about purchasing ‘cold’.
(f) On 19 July 2021, you engaged in a text message exchange about selling either ‘puff’ or ‘md’.
(g) On 19 July 2021, you engaged in a text exchange about selling ‘bud’.
(h) On 26 July 2021, a query was directed to you about ‘bud’.
10Further, a snapchat video located on your phone depicted large amounts of a crystalline substance, powder, and pills on paper with advertising labels including ‘MD’, ‘cola’, ‘MePL’, and prices.
11During execution of the search warrant, $14,210.55 in cash was located and seized by police at the Chetwynd Street property (Charge 3).
12On 28 July 2021, a search warrant was executed at 4 Lynch St, Sunshine as part of Operation Oasis. There premises were also occupied by you and Ms Parker. During the search, 22,285 grams of formaldehyde in a plastic container and 2,053 grams of ammonia in two plastic containers were seized. A further 24.8kg of phosphorus contained in 13 plastic bottles was seized from the Chetwynd Street property. The possession of these precursor chemicals forms the basis of Charge 4.
13It is the prosecution case you were in possession of these chemicals for the purposes of manufacturing drugs of dependence.
14On 28 July 2021, you were arrested and interviewed by police. You made the following admissions:
(a) You stated ‘it’s all mine’ in relation to the items located at the Chetwynd Street property.
(b) You said you used chemicals and other equipment found during the execution of the search warrants for ‘my hobby’.
(c) You used two iPhones but answered ‘no comment’ when questioned about details of those phones.
Offence seriousness
15Trafficking in a drug of dependence is a serious criminal offence, as indicated by the maximum penalty of 15 years’ imprisonment. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have engaged in, in committing Charge 2.[4]
[4] Djordjic v The Queen [2018] VSCA 227 [68] (Beach and Kaye JJA).
16The Victorian Court of Appeal has reiterated that the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of the offence charged in Charge 2 on the indictment, it will always be of importance.[5] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[6] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[7]
[5] 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’).
[6] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); DPP v KMD (2015) 254 A Crim R 244, 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[7] Gregory 8 [24].
17It is also appropriate for me to consider the harm that is inflicted on the community by offences involving trafficking in drugs of dependence, such as 1-4, butanediol, cocaine, MDMA, amphetamine and cannabis.[8]
[8] R v Pidoto and O’Dea (2006) 14 VR 269, 279 [45] (Maxwell P, Buchanan, Vincent and Eames JJA); Wong v The Queen (2001) 207 CLR 584, 609 [70] (Gaudron, Gummow and Jayne JJ); R v D’Aloia [2006] VSCA 237 [56] (Nettle JA).
18At the plea hearing, your counsel submitted that individually the quantities of drugs you possessed were relatively modest, however, in my opinion, the totality of your trafficking is far from being insubstantial. The 1.4, butanediol you possessed is thirty-two times the threshold for a traffickable quantity. The cocaine is thirty-two times the threshold for a traffickable quantity. The MDMA is thirteen times the threshold for a traffickable quantity. The amphetamine is six times the threshold for a traffickable quantity. The cannabis you possessed is 93.4 grams over the threshold for a traffickable quantity. The sheer volume makes clear the drugs in your possession were not for personal use.[9] Nonetheless, I accept you did not intend to traffick in a commercial quantity of illicit drugs and the quantities involved in the offence are not at the higher end of the spectrum.
[9] R v Setters (1999) 107 A Crim R 281, 283–283 [11] (McMurdo P, Cullinane J agreeing).
19It is clear you played a greater role in the offending than Ms Parker, nonetheless, I accept your counsel’s submission the evidence of the telephone intercepts shows you were making individual street level transactions for modest sums. There is no evidence you were involved in a major criminal enterprise. Nor is there any evidence you acquired substantial wealth from your drug related offending conduct or were living a grandiose lifestyle. By your plea to Charge 3, you admit the $14,210.55 was proceeds of crime, however, this is not a very large sum in the scheme of things. Ultimatlely, I cannot exclude as a reasonable possibility that at least part of your motivation for selling drugs was to support your own drug habit.
20Overall, I regard your offending in relation to Charge 2 as being in the mid-range for offences of trafficking simpliciter. I assess your moral culpability as reasonably high. Clearly, denunciation, general deterrence and just punishment must all be given significant weight in my instinctive synthesis.
21Finally, knowingly dealing with proceeds of crime and possessing precursor chemicals are serious enough criminal offences.
Personal circumstances
22You were assessed on 13 June 2024 by Luke Armstrong, a psychologist engaged by your legal representatives. Mr Armstrong prepared a psychological assessment report dated 13 June 2024, which was tendered by your counsel at the plea hearing.[10]
[10] Ex D3.
23You are the youngest of four siblings. You also have one half-sister who was conceived within the context of an extramarital affair, which your father engaged in intermittently throughout his life. Your father passed away suddenly in June 2018.
24Your family have lived in Hobart for many generations. You grew up on a marina, as your father was a commercial fisherman, abalone diver and the director of a maritime business delivering domestic shipping operations.
25You reported to Mr Armstrong a confusing and dysfunctional attachment experience, especially with your father. Your father was an unpredictable figure in your life. His relationship with you oscillated between disinterest to physical and emotional violence. You felt your father viewed you as a commercial commodity. You told Mr Armstrong, ‘I had a Tax File Number from the age of 6 years’. You and your siblings were not permitted to play sport, as you were required to work after school and on weekends in the maritime business. You were not paid, and reported the existence of a TFN was a means for your father to reduce his tax liabilities.
26You had little connection with your father, whom you felt targeted you. You believed he was jealous of your relationship with your mother. You recall your father would occasionally wake you in the middle of the night with a verbal tirade, and/or demand you set a fire for him. Your father was periodically violent, which included violence directed towards your mother. You would often wake up to your father smoking a ‘joint’. Occasionally, your father would punish you by hitting you in the face with a closed fist. In contrast, you enjoyed a positive relationship with your mother.
27Mr Armstrong opines your outlook on your childhood experience is an ambivalent one, with accompanying distortions secondary to a chronic experience of physical, verbal and emotional child abuse. He notes despite your experience of a disturbed early childhood, you did not display disturbances until very early adolescence. You denied experiencing any academic problems.
28Your behaviour deteriorated from the age of 12 years when you began experimenting with cannabis. You attended five schools and were often in trouble for what appears to have been emergent conduct problems. You were expelled at least twice.
29Your use of cannabis markedly increased from the age of 14. You used cannabis daily from the early morning until your bedtime, around midnight. You distinctly recall experiencing withdrawal symptoms, which included insomnia, night sweats and irritability. You denied your drug abuse was an attempt to self-medicate; instead you attributed it to peer associations.
30You began binge drinking at the age of 12 to the point of blacking out. You also experimented with ‘synthetics’, which included the misuse of ephedrine and other amphetamine-like substances. In contrast to your father, your mother did not approve of your illicit drug use or binge drinking.
31You left school at the end of year 10 and undertook an automotive apprenticeship, which you discontinued after six months. You continued to experience an ambivalent, abusive and at times violent relationship with your father.
32As you developed into adolescence you spent increasing time away from your family, becoming more closely aligned with deviant, older males. You became part of the ‘nightclub’ scene at 17 years, with accompanying heavy polysubstance abuse. As a consequence your work ethic was somewhat unreliable. You continued to work intermittently for your father, however this often led to disputes.
33You made the decision to move to Melbourne from Tasmania in an effort to extricate yourself from your drug related problems. You remained in Melbourne for 18 months, during which time you worked as a labourer in the automotive industry. You also worked in a bar, and reported your drug use was minimal during this period because you could not afford to engage in heavy drug use. You returned to Tasmania, owing to your difficult financial circumstances. You recall you felt like a failure.
34Upon returning to Tasmania, you commenced working for the family business as well as working as a deckhand on commercial vessels. Your drug use at this time was somewhat controlled by the fact you spent a considerable amount of time at sea. You admitted to Mr Armstrong that on return to port you would engage in polysubstance binge use, however this was limited to once per month.
35After returning to Tasmania you purchased a commercial marine vessel and spent considerable time, money and effort recommissioning it. Your father’s sudden death in July 2018 added to your family’s stress and, in the aftermath of his death, you agreed to take over the operations of your father’s business. This uncovered financial issues, the extent of which was previously not known to your family.
36During this time, you were also trying to operate your own maritime business, and you described your working hours as ‘extreme’. It was in this context that you began experimenting with crystal methamphetamine (‘ice’) for the first time in your life.
37You began using half a point of ice ‘a couple of times per week’. You told Mr Armstrong the ice gave you an edge for the day and counteracted fatigue and exhaustion. Within eight months of your father passing you were using ice daily. You began to associate with heavy drug users, who were also engaging in drug related crimes. During this period you were also in a relationship with a woman who was heavily addicted to ice. In 2020, your business began to deteriorate.
38Your mental health also began to deteriorate at this time. You attribute this to a number of factors. You felt used by your family, your girlfriend experienced drug induced psychosis, and your own drug abuse spiralled to six days of heavy drug abuse, followed by a crash or withdrawal on the seventh day.
39You told Mr Armstrong you were seriously assaulted in August 2020 by drug associates. After this incident you fled to Melbourne again. You ceased drug abuse for about three weeks, after which you fell back into your old habits. You began injecting up to half a gram of ice a number of times a day. You were also introduced to 1,4-butanediol which you told Mr Armstrong you ‘loved’. You believe this drug blocked out your deteriorating circumstances and sense of personal failure.
40You have a long term history of problem gambling, especially during periods of drug abuse. You commenced gambling at 23 years of age when you won $5300. Your use of poker machines escalated, often to daily use. During the commission of the present offences, you would typically gamble up to several thousand dollars at a time. You were prone to gamble when you were in a depressed state.
Mental state examination
41Mr Armstrong administered the Minnesota Multiphasic Personality Inventory – Second Edition. Your elevated F validity measure caused Mr Armstrong to opine that your mental state is chaotic, your outward façade of stability is tenuous, and you are a vulnerable individual.
42Mr Armstrong also administered the Wechsler Adult Intelligence Scale Fourth Edition, the results of which indicate your non-verbal IQ is average and your verbal reasoning capacity is borderline to low average.
43Mr Armstrong considers you present with a long familial history of dysfunction, specifically child abuse. In his view, depressive related problems have been a long term feature of your life, especially a sense of worthlessness and depressed mood.
44Mr Armstrong opines that problems with anhedonia (an inability to take pleasure in the common experiences of life which people usually find pleasurable, such as eating, drinking and social interaction) whilst exacerbated by drug withdrawal have featured within a context of long-term depression related problems. While you deny the use of cannabis as a form of self-medication, in Mr Armstrong’s opinion, your dependency on the drug from such a young age would suggest that your mental health problems have been entwined with substance abuse.
45Mr Armstrong opines you suffer with features of major depression and features of a dependent personality disorder. He states:
Mr Galpin has battled on and off throughout his life with depressive symptoms, there is also personality disorder. My view is that he has and continues to suffer with Features of Major Depression and Features of a Dependent Personality Disorder. These conditions have been present since childhood. I am concerned that depressive symptoms have become more substantial in the past 6 months now that he is not self-medicating with illicit substances. He is terrified of returning to gaol, these factors have triggered significant suicide ideation.
46In relation to substance abuse. He considers you were heavily addicted to cannabis from very early adolescence. Your cannabis use became less prominent as your dependence and preference for stimulants burgeoned in your late teens and again in your mid-twenties. Mr Armstrong opines you had a stimulant use disorder for at least one to two years leading up to your arrest, despite the fact you made attempts to desist from illicit drug use four days prior to your arrest. He also considers you have an undiagnosed gambling disorder.
47Your counsel accepted no Verdins principles[11] are engaged in your case.
Risk of reoffending
[11] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
48Your severe polysubstance abuse has been reduced to a mild to moderate addiction disorder as a result of substantial time spent on remand, residential treatment and attempts at outpatient treatment. Mr Armstrong’s view is that while your singular relapses into drug abuse are concerning, your progress has been significant relative to your pre-arrest status. He also observes that your acknowledged drug addiction obscured an appreciation by you of the level of destruction the present offending creates in the community.
49Mr Armstrong opines you are a relatively low risk of reoffending. While in the past you have engaged in ‘mild relapse behaviour’, your experience on remand and insight make a clear link between your drug abuse and offending. Mr Armstrong considers increased treatment engagement and support would reduce this risk further.
Prior criminal history
50Your criminal history dates back to your first appearance in the Hobart Court of Petty Sessions on 9 November 2011. Significantly, you have no prior convictions or findings of guilt in relation to trafficking drugs of dependence.
51In November 2011, you were placed on an adjourned undertaking, without conviction, for a period of two years in relation to one charge of attempted stealing, one charge of unlawfully possess dangerous article in a public place, one charge of possess controlled plant or its products and one charge of unlawfully tamper or interfere with motor vehicle.
52You next appeared in the Hobart Court of Petty Sessions on 8 October 2013 in relation to one charge of burglary. You were again placed on an adjourned undertaking, without conviction, for a period of 12 months.
53Since then you have been convicted of four driving offences, one theft charge, five charges relating to drug use or possession and three offences involving contravening bail conditions and failure to appear.
54Whilst your prior criminal history has some concerning aspects to it, it is not extensive and the most significant penalty imposed on you to date has been a fine with conviction. Importantly, prior to your arrest for the present offences, you had never been remanded in custody nor sentenced to a term of imprisonment. I accept your counsel’s submission that prior to the present matters you had not ‘demonstrated a pattern of behaviour similar to the [present] offending’.
Mitigating circumstances
55You pleaded guilty to the present charges on 11 November 2024. The committal hearing proceeded on 30 May 2022 by way of straight hand up brief. Following extensive negotiations from June/July 2022 until 30 May 2024 the charges for which you fall to be sentenced were agreed upon. These negotiations were complicated by the Commonwealth charge of which you have been acquitted by the jury. In these circumstances, I am of the opinion your pleas of guilty should be treated as having been entered at a relatively early opportunity given the forensic choices you faced.[12]
[12] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
56Your pleas have significant utilitarian benefit and indicate an acceptance by you of responsibility for your offending conduct. They also indicate a willingness to facilitate the course of justice, by saving the extra time and expense these matters would have caused in the trial on the Commonwealth offence of which you were acquitted.
57You have been remanded in custody for 703 days up to, but not including, today. Your counsel submitted, from 28 July 2021 until your release on bail on 27 June 2022 you were subject to onerous conditions in custody owing to COVID-19 restrictions. You estimate you spent 100 days in lockdown. You received no in-person visits and your access to programs was extremely limited during this time.[13]
[13] R v Biba [2021] VSC 327 [38] (Beale J).
58Moreover, during your first period on remand it became known within your unit you had been a prosecution witness in a murder trial in Tasmania when you were aged 15.[14] You were subsequently moved to a protection unit. This issue occurred again during your second period on remand within the protection unit you were held in at Port Phillip Prison. I accept your time in custody has been more onerous on you and this is not a product of your own behaviour.[15] You will receive some mitigation in penalty as a result.
[14] See ABC News newspaper article dated 27 November 2008 (Ex D4).
[15] Byrne v The Queen [2020] VSCA 289 [21] (Kyrou and Osborn JA).
Remorse
59I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct. As Winneke P observed in R v Cooper:[16]
[a] distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds [himself].[17]
[16] (1998) 103 A Crim R 51 (‘Cooper’).
[17] Cooper 55 (Tadgell JA agreeing). See also Raptis v The Queen (1988) 36 A Crim R 362, 366 (Young CJ , O'Bryan & Tadgell JJ).
60True remorse is a question of fact and is determined on the balance of probabilities.[18] An offender must satisfy the court there is ‘genuine penitence and contrition and a desire to atone’.[19] In many cases the most compelling evidence of remorse comes from the offender’s testimony.[20]
[18] Cooper 55; R v Gillick [2000] VSCA 127 [20] (Callaway JA, Chernov JA agreeing) .
[19] Barbaro v The Queen (2012) 226 A Crim R 354, 365 [38] (Maxwell P, Harper JA and T Forrest AJA) (‘Barbaro’).
[20] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44] (Neave, Mandie and Harper JJA).
61In CD v The Queen,[21] Harper JA, with whom Buchanan JA agreed, quoted his earlier observations in Phillips v The Queen,[22] where his Honour said:
[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[23]
[21] [2013] VSCA 95 [36].
[22] (2012) 37 VR 594, 621 [101].
[23] Ibid [97]–[101].
62You made full admissions in your record of interview to the circumstances pertaining to the present offending conduct. Moreover, I have had regard to the comments made in the report of Mr Armstrong, where he observes:
Mr Galpin also accepts that he broke the law. He concedes that drug addiction obscured an appreciation of the level of destruction this kind of offending creates and maintains in the community. Mr Galpin reflects that his insight of this fact emerged during his rehabilitation experience. My view is that Mr Galpin is genuine in his expression of regret.
63I find there is evidence of your insight into, and remorse for, your offending conduct. While I am not bound to accept second hand evidence of what you said during your psychological assessment,[24] I accept your expression of remorse is genuine and I will give it weight in sentencing you for these offences.
Delay
[24] See Barbaro [38].
64The effect of delay is a mitigating circumstance in your case. There has been significant delay since the commission of the present offences in July 2021.
65As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[25]
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.[26]
[25] (2013) 40 VR 436.
[26] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
66There is evidence before me regarding the efforts you have made towards your rehabilitation during this period of delay. Upon your release from custody on bail on 28 June 2022 you completed a 16-week program at The Cottage, a residential drug rehabilitation program. At the plea hearing, your counsel tendered a letter of completion from The Cottage which speaks highly of your level of responsibility during the program and your commitment to recovery.[27] I take this into account in your favour. This attitude is commendable and augers well for your prospects of rehabilitation provided you can remain drug free upon your release from custody.
[27] Ex D5.
67So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a significant sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you anxiety and stress. I take the punitive effects of delay into account in your favour.
Rehabilitation
68You were released on bail on 28 June 2022 and taken directly to The Cottage, a residential drug rehabilitation program. In October 2022 you completed a 16-week program at The Cottage. After your completion of the program, you voluntarily continue to engage with a counsellor.
69At the plea hearing, your counsel relied on the letter of completion from The Cottage, as well as a letter from Maria Hutchison, an addiction treatment counsellor whom you voluntarily engaged with in one-on-one counselling during the final two months of your treatment at The Cottage.[28] Both letters commend you for your high level of commitment and engagement.
[28] Ex D6.
70Despite the efforts you have made, which are to be commended and encouraged, I assess your prospects of rehabilitation as being somewhat guarded. Mr Armstrong noted in his report the following vulnerabilities:
Mr Galpin[‘s] rehabilitation to date has focused [on] extinguishing his biological dependency to illicit substances, however Mr Galpin is yet to substantially engage in psychological treatment. Psychological treatment is where Mr Galpin could potentially benefit from developing a link or understanding between his experience of triggers in his environment both past (familial) and present (situational) and his subsequent experience of drug cravings.
The reality is that Mr Galpin has relapsed, whilst a singular relapse is not an indicator of treatment failure, what is important is how the individual responds to the relapse which is of critical importance. Mr Galpin is somewhat isolated from a treatment perspective. He has a good relationship with his GP, and a transparent one, however Mr Galpin has minimal social and/or psychological supports.
Mr Galpin depends significantly on peer relationships, it would appear that some primary peers use illicit substances, Mr Galpin is ambivalent in viewing these relationships as risk factors for his relapse.
71Your ultimate rehabilitation and reintegration into a law-abiding lifestyle will depend to a large extent on your ability to control your illicit drug addiction and develop positive coping strategies following your release from custody. It will be necessary for you to disassociate from your former criminal behaviour and develop a more productive attitude and lifestyle, particularly in relation to treatment of your mental health conditions. The support of your family, particularly your mother, and a return to stable housing and employment in Tasmania, should be protective factors in this regard. Overall, I assess your prospects of rehabilitation as being somewhat guarded.
Application of sentencing principles
72I have 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[29] and DPP (Vic) v Dalgliesh (a Pseudonym)[30] and the Victorian Court of Appeal decisions in DPP v Zhuang[31] and DPP (Cth) v Thomas.[32] Specifically, I have considered the so-called ‘comparable cases’ I was referred to by the prosecutor[33] and your counsel.[34]
[29] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[30] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[31] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[32] (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).
[33] Ex P3.
[34] Ex D2.
73While 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.[35]
[35] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
74Moreover, it is 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.
75The 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.
76In 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.
77Parity is an important sentencing consideration in this case.[36] Your co-offender, Stephanie Parker, was sentenced by her Honour Judge Dalziel on 9 September 2022.[37] Ms Parker pleaded guilty at a very early stage in the proceedings to a number of offences preferred on two indictments, one State[38] and one Commonwealth.[39] On the State indictment, she pleaded guilty to one charge of home invasion, one charge of causing injury intentionally, one charge of common assault and one charge of damaging property. On these charges Ms Parker was sentenced to an aggregate sentence of detention in a youth justice centre (‘YJC’) for three years.
[36] See eg Collins v The Queen [2015] VSCA 106 [23] (Whelan, Santamaria and Beach JJA).
[37] DPP v Parker [2022] VCC 1524 (Ex P4).
[38] Indictment No. M12521096 in Case No. CR-22-00348.
[39] Case No. CR-22-01007.1.
78More relevantly for present purposes, Ms Parker was charged on the Commonwealth indictment with one charge of making a false document, five charges of trafficking drugs of dependence, one charge of knowingly dealing with proceeds of crime and one charge of possessing a prescribed precursor. On the charge of making a false document she was sentenced to detention in a YJC for four months and on the remaining charges she was sentenced to an aggregate sentence of detention in a YJC for 18 months. Six months of the sentence imposed on the Commonwealth indictment was ordered to be served cumulatively on the sentence imposed on the State indictment, making a total effective sentence of detention in a YJC for three years and six months.
79Ms Parker’s Charge 2, which relates to 1,4-butanediol; Charge 3, which relates to cocaine; Charge 4, which relates to 3,3-Methylenedioxy-N-Methylamphetamne (MDMA); Charge 5, which relates to amphetamine; and charge 6, which relates to cannabis, are the equivalent charges Ms Parker faced to your charge 2, which effectively ‘rolls up’ the same five drugs of dependence into the one charge.[40] Ms Parker’s charge 7 is the same as your charge 3 and her charge 8 is equivalent to your charge 4, but only relates to her possession of phosphorus, and not formaldehyde and ammonia as is the case with your charge 4.
[40] See R v Jones [2004] VSCA 68 [13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); McCray (a pseudonym) v The Queen [2017] VSCA 340 [17]–[18], [29]–[30] (Maxwell P and Croucher AJA); Crawford v The Queen [2018] VSCA 113 [43]–[44] (Maxwell P and Kyrou JA); R v Richard [2011] NSWSC 866 [102]–[109] (Garling J).
80The main distinguishing features between Ms Parker’s circumstances and yours are you played a greater role in the offending conduct than she did, and Ms Parker was sentenced as a young offender. She was aged 18 at the time of committing the offences and 19 at the time of sentence. Judge Dalziel gave ‘considerable weight to [her] youth in considering the type and length of sentence to impose’.
81Moreover, Judge Dalziel sentenced Ms Parker on the basis she entered her pleas of guilty at the earliest opportunity, that Verdins principle 3[41] was engaged ‘to some extent’ to moderate the weight she gave to general deterrence, and the principles in Bugmy v The Queen[42] gave rise to ‘a moderate degree of mitigation of … sentence’. Her Honour also sentenced Ms Parker on the basis she had ‘positive or good’ prospects of rehabilitation. On the other hand, Ms Parker was on bail at the time of committing the offences.
[41] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[42] (2013) 249 CLR 571.
82Despite these differences between Ms Parker’s circumstances and yours, I will pay significant regard to parity between the sentences she received from Judge Dalzeil and the sentences I impose on you.
83The parsimony principle requires I not impose sentences that are more severe than those which are necessary to achieve the purpose or purposes for which the sentences are imposed,[43] and I must not impose sentences that involve your confinement unless I consider the purpose or purposes for which these sentences are imposed cannot be achieved by sentences that do not involve your confinement.[44] Clearly, your offending in relation to these charges requires the imposition of a sentences of imprisonment. Your counsel appropriately conceded this was the case.
[43] See Sentencing Act (‘SA’) s 5(3).
[44] See SA s 5(4).
84The prosecution submitted I should impose a total effective sentence of imprisonment with a non-parole period. Nonetheless, the prosecutor fairly submitted there is ‘some appeal in having a sentence without a non-parole period to allow [you] to return to [your] hometown and assist in the family business’. She qualified this by submitting ‘it remains a risky proposition’ because of your drug issues and the risk you will go back to your old ways when you return to Tasmania.
85Ultimately, the prosecution position is that you ‘need strong, supportive guidance and solid strategies to assist [you] in [your] rehabilitation if [you] are to be successful, and parole is a dedicated vehicle to assisting in that aim’.
86The prosecution further submitted that if ‘a non-parole period is not available, it would be more appropriate for a combination sentence to be imposed’ because this disposition ‘would address the protection of the community in terms of lessening the likelihood of re-offending’.
87Your counsel submitted that a ‘straight sentence’ without the imposition of a non-parole period is the appropriate disposition in this case. This would allow you to be released from custody to return to Tasmania rather than remain here in Victoria, either on a parole order or a community correction order, if a combined sentence was imposed, where you do not have the support network necessary to keep you from falling back into a life of drug addiction and crime.
88After carefully considering the matter and balancing the competing submissions and all relevant sentencing considerations, I have decided to accept your counsel’s submission and sentence you to a ‘fixed sentence’. I consider this outcome gives you the best opportunity to rehabilitate yourself, which will best serve your interests and those of the broader community.
Mr Galpin
On the charge of trafficking drugs of dependence (Charge 2) you are convicted and sentenced to imprisonment for 675 days.
On the charge of knowingly dealing with proceeds of crime (Charge 3) you are convicted and sentenced to imprisonment for three months.
On the charge of possessing precursor chemicals (Charge 4) you are convicted and sentenced to imprisonment for six months.
I order that 30 days of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 2. The sentence imposed on Charge 3 will be served wholly concurrently with the sentence imposed on Charge 2.
This makes a total effective sentence of imprisonment for 705 days.
For the reasons previously stated, I decline to fix a non-parole period.[45]
[45] See SA s 11(1); Sinclair v The Queen [2022] VSCA 180 [39] (Kyrou and T Forrest JJA); Power v The Queen (1974) 131 CLR 623, 627–629 (Barwick CJ, Menzies, Stephen and Mason JJ).
I declare 703 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 3 years’ and 6 months’ imprisonment with a non-parole period of 2 years and 3 months.
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