Director of Public Prosecutions (Cth) v Virgato
[2022] VCC 1647
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00174
CR-21-00238
| THE DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| ANTHONY VIRGATO |
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JUDGE: | HIS HONOUR JUDGE BAYLES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2022 | |
DATE OF SENTENCE: | 19 September 2022 | |
CASE MAY BE CITED AS: | DPP (Cth) v Virgato | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1647 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Guilty verdict after trial - Attempt to possess a commercial quantity of a border controlled drug – Plea of Guilty - Possess drug of dependence.
Legislation Cited: Criminal Code Act 1995 (Cth) - Drugs, Poisons and Controlled Substances Act 1981 (Vic) - Crimes Act 1914 (Cth).
Cases Cited:R v Storey [1998] 1 VR 358 - Cheung v R (2001) 209 CLR 1 - R v Verdins [2007] VSCA 102; (2007) 16 VR 269 - Brown v R [2020] VSCA 212 - R v Nguyen (2010) 205 A Crim R 106 - Phommalysack v R [2011] VSCA 32 - R v Kilic [2016] HCA 48 - R v Pham {2015] HCA 39.
Sentence: Seven years and nine months' imprisonment, 4-year non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr M. Wilson | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Dickinson | Melasecca Kelly & Zayler |
HIS HONOUR:
Introduction
1Anthony Virgato, on the 11 March 2022 a jury found you guilty of attempting to possess a substance being a border-controlled drug, namely cocaine reasonably suspected of having been unlawfully imported and being in a commercial quantity. That charge is contrary to ss11.1(1) and 307.8(1) of the Commonwealth Criminal Code. You pleaded guilty before the jury to one charge of possessing a drug of dependence, namely cocaine, contrary to s73(1) of the Victorian Drugs, Poisons and Controlled Substances Act.
2
On the second day of your plea hearing on 4 May 2022, you also pleaded guilty to a second indictment containing one charge of possessing a drug of dependence, namely anabolic and androgenic steroidal agents, contrary to s73(1) of the
Drugs, Poisons and Controlled Substances Act
.
3You now fall to be sentenced for those three offences.
4The maximum penalty for the charge of attempting to possess a commercial quantity of an unlawfully imported border control drug is life imprisonment. The maximum penalty for the other two offences is five years' imprisonment or one year where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in that drug.
5
The summary of prosecution opening for trial alleged that on about 22 June 2019, an air parcel arrived in Australia from The Netherlands via courier company
TNT Express shipping. The consignment was addressed to a John Stamos of
64 Kinsale Street in Reservoir, Victoria
with the phone number ending in the numbers 409. The consignment was declared as containing Dutch auto parts/seat covers. On about 1 July 2019, the package was intercepted by
Australian Border Force officers and found to contain four seat covers. Within each seat cover was found two blocks of a white powder substance. That substance upon subsequent analysis was cocaine, being a border-controlled drug.
6
Police enquiries into the consignee details did not identify any person by the name
John Stamos. The address, 64 Kinsale Street in Reservoir, was a construction site for a residential home undergoing renovation. The property was owned by
Virgato Investments, a family business owned by your father. A phone number ending in 404 contacted TNT Express approximately 11 times between 1 July and
5 July 2019.
7
Notably that number differs only in the last digit from the phone number on the consignment. TNT employees received calls from a male customer identifying himself as John or John Stamos who enquired about the package. On Friday,
5 July 2019 at about 8.50 pm, you attended TNT Express Shipping depot located at 45 Sky Road in Tullamarine, in an attempt to collect the package. CCTV footage captured you driving in a Toyota Hilux Single Cab Tray Utility. You were told there that the consignment was not available for collection and would be delivered on
Monday 8 July 2019.
8
At the time of those events you were living at 15 Duke Street in Epping. At about
11.25 am on Monday 8 July 2019, you were seen by surveillance operatives to leave the premises of 15 Duke Street in the same Toyota Hilux single cab Ute and drive to 64 Kinsale Street in Reservoir. You arrived at that address, you parked your vehicle and went inside the premises. At about 12.25 pm an
Australian Border Force Investigator named Steven Guy arrived at
64 Kinsale Street in Reservoir, posing as a delivery driver for TNT.
9Guy knocked on the front door and spoke to you. He said he had a delivery for John. You told him, 'I am just working here, I am a carpenter.' Guy said the package is for John Stamos. You said to Guy, 'Let me make a phone call to the boss, to see what he wants to do.' You then appeared to make a phone call, then said to Guy, 'Yep that's is fine, you can leave it out here near the front door.' Guy asked you to sign for the delivery. And you said, 'Okay'. You signed for the delivery and you told him that your name was Tony.
10
At about 12.39 pm, you were observed by surveillance operatives leaving the address at 64 Kinsale Street in your vehicle. You were kept under surveillance and seen to drive around the Reservoir area in what was described as an unusual route towards the Bunnings located on Dalton Road in Thomastown. You parked your vehicle there and were observed smoking inside the vehicle. After about
five minutes, you departed Bunnings and you drove to a store in Epping, where you parked your vehicle and were observed walking with an unidentified man.
11
You then drove back to your residential premises on Duke Street in Epping. Shortly after that you were arrested sitting on the front porch at
your premises in Duke Street, Epping. The consignment that had been delivered to 64 Kinsale Street remained at those premises near the front door, where you had told Steven Guy to leave it.
12Upon your arrest a pat down search located two small plastic press seal bags containing white powder which you told police was cocaine. Also located was a handwritten note with a number ending 789 and the names Debbie and John written on it. Two Samsung mobile phones were also located with you upon your arrest. One mobile phone was identified as your personal mobile phone. You were transported to the Mill Park Police Station where, at about 3.40 pm, you were interviewed by police in relation to the consignment.
13During the interview you made extensive admissions to using and being addicted to cocaine. You answered, 'No comment' in relation to the allegations that were put to you about the consignment. The consignment was located by police where it remained on the front porch of the premises at 64 Kinsale Street and opened. The consignment was photographed by police and seized.
14
The cocaine seized from the consignment was taken to the
Victoria Police Forensic Services Centre for analysis by drug analyst
Joanna Wintern. The result of that analysis determined the cocaine to be of a purity level ranging from 64-83 per cent and a total pure weight ranging from
2.5 kilograms to 3.3 kilograms. That means at the lower end of that range it was
1.25 times the commercial quantity for the drug cocaine.
15Based on the defence response dated 15 February 2022 and the defence conduct of the trial, no issue was taken with the allegations that I have outlined above. The central issue for trial was your level of knowledge of the contents of the package. The central issue for practical purposes was whether the prosecution could prove beyond reasonable doubt that you intentionally attempted to possess the white powder substance that was initially contained inside the consignment package, and that you were reckless as to that white powder substance, being a border controlled drug.
16
Mr Dickinson who appeared on your behalf in the trial adduced evidence in
cross-examination of police officers of certain things that you said to the police in the police vehicle while you were being transported back to the
Mill Park Police Station following your arrest. You were in that vehicle with Detective Matthew Millet, Detective Robert Blezard and a third police officer. In cross-examination of Detectives Blezard and Detective Millet, Mr Dickinson adduced evidence that Detective Millet spoke to you in the vehicle. Detective Millet made notes of that conversation. He gave evidence that you told police whilst travelling in the vehicle, that you were collecting the package to pay off your drug debt to your dealer Chris.
17You told police that you were told to collect the package and leave it at the house. You told police that your dealer Chris lives in Sunshine and deals in coke and Xanax from the nightclubs Fabrique, Ms Collins, One Six One and Circus. Detective Blezard put to you in your police interview that you had told police in the car that it was to repay a debt of $2,000, although you answered, 'No comment' to that question in the police interview.
18You had told police in the vehicle that you thought the package was tobacco. You admitted to police that you went to TNT on the Friday before to collect the package. You told police that Chris was someone you bought drugs from on a regular basis, and that you have known him for three or four years. Detective Millet conceded in cross-examination that you told police that you had been told that the package was tobacco. In re-examination on that point, Detective Millet gave evidence that his note of that conversation was 'thought the package was tobacco'.
19In short compass, that evidence adduced under cross-examination primarily of Detective Millet but also of Detective Blezard of what you told police in the vehicle on the way to the Mill Park Police Station, was the essence of your defence at trial. That is, your defence was that you did not believe that this package contained a white powder substance and you were not reckless as to the white powder substance being a border controlled drug, rather you held the belief that the contents of the package was an importation of tobacco, that being an illegal importation of tobacco, and that you had been asked by your drug dealer to receive that package and leave it on the front porch. The completion of that task would expunge the drug debt that you owed to your dealer, Chris.
20At trial, both in cross-examination and in arguments to the jury, Mr Dickinson placed considerable emphasis on your cooperation with police in the police car, your admissions to a substantial portion of the prosecution case, those being your admissions to having a significant cocaine addiction, having been to TNT on the Friday before your arrest to attempt to collect the package and your receipt of the package on 8 July 2019 and leaving it on the front porch as you had been instructed to do.
21In returning a verdict of guilty to the charge of attempting to possess a commercial quantity of a border controlled drug, the jury found beyond reasonable doubt that you intended to possess the white powder substance and that you were at least reckless as to that substance being a border controlled drug. In doing so, the jury rejected your defence.
22What is not necessarily revealed by the jury verdict, is whether the jury rejected everything about your explanation for how you came to receive the package, or whether they simply rejected your assertion about your belief about the contents of the package. I am required to engage in a fact finding exercise to resolve that matter.
23At the plea hearing, that commenced on 2 May 2022, Mr Dickinson submitted that I should find that whilst the jury rejected your assertion that you believed the package contained tobacco, I should not find that the jury verdict represents a rejection of other aspects of your explanation to police. Those being that you had a significant cocaine addiction, you had a dealer named Chris who dealt drugs at various nightclubs, you had accrued a drug debt to your dealer Chris, and that he had asked you to receive this package as a way of paying off that debt.
24Mr Dickinson submitted to me at plea hearing that there are a number of paths of reasoning that a jury may have gone down to reach the verdict they did. One such path is that a jury may have accepted everything that you told police in the car except for 'I was told it was tobacco', or that you at least believed that it was tobacco. That path of reasoning from a factual perspective would still have you as a person who had a heavy drug habit, who had a dealer to whom you owed a drug debt and were asked to receive a package to expunge that debt. If that factual basis were accepted, there are certain implications about your role and level of culpability for the offending, performing a task that would be designed to leave your drug dealer at arm's length from the importation and putting you at risk of detection.
25In the course of the plea hearing, in written and oral submissions, both parties referred me to authorities that state the principles with respect to findings of fact after trial by the judge for the purpose of sentencing.
26Of course, The Queen v Storey[1] sets out the well-established propositions that a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused, unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused then it is enough that those circumstances are proven on the balance of probabilities.
[1] R v Storey [1998] 1 VR 358.
27
In written submissions filed on behalf of the prosecution at the plea hearing dated 1 May 2022, Mr Wilson drew my attention to the principles set out in
Cheung v The Queen
.[2] I will not repeat or set out those principles in full here, suffice to say that I accept the propositions that first I must sentence you on a factual basis that is consistent with the verdict of the jury. Second, whilst there is no requirement that I must sentence you on a view of the facts consistent with the jury verdict that is most favourable to you, any finding of fact that I may make against you must be arrived at beyond reasonable doubt.
[2] Cheung v R (2001) 209 CLR 1.
28As I have stated, Mr Dickinson's submission to me was that I should find that your role was exactly as you described it to police while you were in the police vehicle with the exception that a jury rejected your assertion that you believed it was tobacco.
29Mr Wilson, who appeared on behalf of the Commonwealth Director of Public Prosecutions at both the trial and plea hearing, submitted that this matter was not a part of the prosecution case, but rather something that the defence asserted as a matter in mitigation. Mr Wilson submitted that I would have to be satisfied of those matters on the balance of probabilities in order to proceed to sentence you on that factual basis.
30
Mr Wilson accepted that there is a dearth of evidence as to what your role was other than what you told police whilst you were in the police vehicle. Mr Wilson accepted that the account that you gave is not inherently implausible, however
Mr Wilson provided some challenge to the proposition that I should be satisfied of this account on the balance of probabilities. In particular, Mr Wilson challenged the proposition that your involvement in receiving this package was likely to have been performed by you simply to repay a drug debt of $2,000. Although, as I understood it, Mr Wilson acknowledged that it may be difficult for me to reject that as a reasonable possibility.
Analysis
31I turn to the analysis of these matters. I must say I have some concern about proceeding to make findings in relation to this issue. As I observed at plea hearing, the evidence around this issue is somewhat tenuous. There was no sworn evidence given or testing of the account by way of cross-examination of you. The evidence led at trial was simply based on police notes of what you told the police when you were inside the police vehicle.
32
I note that there is a dearth of evidence that is capable of shedding any light beyond the bare facts that I have outlined in the preceding paragraphs. There is no evidence about how or by whom the importation was organised. There is no evidence about what was to happen to the package after its delivery to
64 Kinsale Street. There is no evidence that suggests any greater involvement by you than the kind of role that you described to police.
33I must say I have some doubts about the reliability of the account that you told police. Particularly the assertion that your involvement was to pay off a drug debt that appears to have been a relatively small amount in comparison with the nature and quantity of the drugs that were imported. If this were a matter about which I had to be satisfied beyond reasonable doubt, then I would not be so satisfied.
34However, I do not find the account inherently implausible or unlikely that you participated in these events as you described to police. There is no other evidence that contradicts your account or casts doubt on it. There is no evidence that you were involved in the organisation or the financing of the importation. There is no evidence that you were going to distribute it in any way other than allowing it to be passed on as you described. There is no other evidence about what you may have been going to receive out of your actions.
35I accept Mr Wilson's submission that this is a matter that I would have to be satisfied of on the balance of probabilities. In the end, I am prepared to accept the factual account that you asserted to police in the police vehicle, to the extent that it is consistent with the jury verdict. In other words, I am prepared to accept on the balance of probabilities, the factual account that you gave to the police, other than the assertion that you believed it was tobacco.
36Another matter that I will touch upon here is the use of what was referred to as the 404 phone. The evidence at trial was that the mobile phone with the number ending in 404 contacted TNT in circumstances where it could not have been you using that phone at that time. Ultimately, I understood Mr Wilson to concede that I could not exclude that another person was making enquiries about the package using the 404 phone. It is not entirely clear what flows from that or how it affects the sentencing exercise. Suffice to say that it demonstrates that someone else must have been making enquiries of the package with TNT and that this is possibly consistent or at least not inconsistent with the account that you gave to the police, being that you played only a part role in the collection of this package.
Role
37Having made that factual finding, I now turn to the matter of your role and what you actually did to constitute this offence. Mr Dickinson submitted that the role that a person plays in offending of this kind, is the dominant factor to take into account. Mr Dickinson submitted that whilst the quantity is important, where there is information as to what the person actually did and what their role was, then that will be the dominant sentencing factor.
38From this perspective, Mr Dickinson submitted that your role was a very limited one. You came to this offending as a person heavily addicted to drugs, with a debt to your drug dealer and a vulnerability to a request from him. Mr Dickinson submitted that you were told by your dealer, Chris, to accept the package and leave it on the front porch and that is exactly what you did. On that view your role in the offending should be seen as a very limited one.
39Mr Wilson submitted that even on your account, in combination with the totality of evidence at trial, your role was still a significant one. It was not just the collection of the package or the receipt of the package on the day, it was a combination of allowing your address to be used for the delivery, making a number of earlier enquiries with TNT including going to the TNT depot in person. Mr Wilson submitted that you made a specific trip to the house on 8 July for the purpose of being there to collect the package. Your interactions with the delivery driver were guarded and then you made a somewhat strange trip to Bunnings before going home.
40Mr Wilson submitted that a complete or coherent picture of what was actually behind the importation and the intended passage of the consignment does not emerge from your conduct. However, on any view, the role that you played was an important one in the chain of movement of illicit drugs. Your role was more than one of being just a passive recipient or a delivery address. You made active enquiries and attempted to collect the package from TNT and you went to the address on the day of delivery to be there to receive the package.
41
I accept those submissions of Mr Wilson. I also find that your involvement in the receipt of the package, must have involved you providing the address at
64 Kinsale Street as the delivery address. In my view there is no other sensible explanation for how the package came to be addressed to that address.
42Mr Wilson submitted that even where a person plays a role where the individual person may be dispensable or interchangeable it is still an important role in the chain of movement of illicit drugs. The authorities make it clear that denunciation and general deterrence remain as important sentencing factors.
43These submissions are clearly correct. The authorities and sentencing practices for offences of this kind demonstrate that where a person plays a small but important role in the movement of illicit drugs then general deterrence still looms large as a sentencing factor. People who may be minded to participate in the illicit drug trade such as you did, must be sent a message that if they choose to do so, they will face stern punishment.
44In this case the overall assessment of what you did to participate in this offending and the weight to be given to general deterrence must be assessed in light of other matters that were put in mitigation at the plea hearing.
45Two psychological reports both authored by Mr Luke Armstrong consultant psychologist, dated 2 August 2019 and 28 April 2022, were tendered at the plea hearing. The first of these reports outline some of your personal history. Your father was born in Calabria, Italy, and migrated to Australia at the age of two years. Your mother was Australian born. You reported feuding within your father's side of the family and thus no close extended family on the paternal side.
46You are a middle child having younger twins and an older brother. You reported that you are close to your family, however you also reported many unreconciled issues with your father and brother. You went to primary school in Preston where you struggled socially, experiencing bullying in the form of verbal and physical abuse. You reported never being accepted by your peer group often feeling isolated and rejected. Your father was strict and had high expectations of you academically and emotionally, these experiences affected your development.
47You experienced bullying at secondary school, feeling isolated and ostracised during your entire experience there. You began a practice in martial arts and boxing which you were very good at, however, this caused further difficulties as you were then constantly challenged to fight by others at your school. After successfully completing your VCE you commenced an apprenticeship in carpentry which you completed, however you experienced interpersonal difficulties and changed employment regularly.
48Mr Armstrong described an essential theme in your life from a very young age as being of very poor self esteem and self confidence. Mr Armstrong reported that you have felt chronically inadequate all your life and as a result are unable to stand up for yourself. At around 21 or 22 years of age you experienced the breakdown of a significant relationship. You became depressed and some time after that you report experimenting with cocaine for the first time. You quickly became addicted and started taking cocaine on a weekend basis. Within 12 months your use escalated to approximately 1 to 1.5 grams per day.
49You reported that within 12 months you also began using Valium and Xanax in order to sleep. Drug use became a routine for you. You would take cocaine to get through the day and then take Valium and Xanax to sleep at night, waking the next day feeling groggy. Mr Armstrong described this as a transformation into a pattern of self medication often a feature of the addiction process.
50In 2017, you used synthetic cannabis which led to a significant deterioration in your mental state and ultimately a diagnosis of a brief episode of drug induced psychosis. At some point your family called the CAT team and you were admitted to a psychiatric unit for five to seven days.
Verdins
51I move now to the question of the Verdins principles.[3] Mr Dickinson submitted that all of the limbs in Verdins are enlivened. In order to address this matter it is necessary for me to review the evidence of Mr Armstrong in some detail.
[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
52
In the two written reports, Mr Armstrong gave the opinion that you meet the criteria for a diagnosis of dependent personality disorder, with features of narcissistic personality disorder. You also reported a symptom profile consistent with stimulant use as well as opioid and anxiolytic substance use disorders.
Mr Armstrong stated that you present with a deterioration in functioning over a period of 10 years or more.
53When originally charged over this matter in 2019, you spent 30 days in custody before being released on bail. You were bailed with a condition to reside at the Habitat Therapeutic Private Hospital. You resided there for 91 days at the therapeutic facility completing the program there. It was reported that you applied yourself to the program and made steady progress in your recovery. It was reported that you displayed honesty, open-mindedness, and a desire to change. You became a valued member of the therapeutic community. You were described as eager to help and would regularly volunteer for extra duties to assist the community you were living in. You were appointed as a senior, which included increased responsibilities and you were a mentor to new clients entering the program.
54Mr Armstrong provided an updated reported 28 April 2022, he stated that you described the experience at the Habitat Therapeutic Community as challenging, however the treatment assisted you in addressing many of the problems that underpinned your addiction. You remained drug free during the residential period of 91 days and you reported that you have also remained drug free following your release form Habitat. You have commenced a new relationship with a woman who does not use drugs and who is supportive of your recovery. You no longer mix with a drug using peer group.
55You also report a reconciliation with your family and the relationship with your mother and father has significantly improved. You now work full-time in the family business and also worked as a casual deckhand on an ocean fishing charter vessel.
56
Mr Armstrong also gave evidence at your plea hearing. He gave evidence of his initial assessment of you at Fulham Prison in 2019, where he undertook a structured clinical interview and assessment of intellectual functioning.
Mr Armstrong described you as a daily polysubstance abuser. He described this as a process of self medication. Mr Armstrong gave the opinion that his diagnosis at the time was that you fulfilled the criteria for a dependent personality disorder within the DSM parameters. He also describe the traits or features of a narcissistic personality disorder, in particular a sense of entitlement.
57Mr Armstrong also reiterated in evidence what he described as three independent diagnoses of stimulant, anxiolytic and opiate use disorders. He described your polysubstance use as an attempt at self medication and an attempt to regulate yourself. Mr Armstrong described you as a person who at the core has chronically low self esteem and struggled with your own identity.
58Mr Armstrong described the features of dependent personality disorder as including an inability to self regulate. He said that to your credit, you spent a significant part of your early adolescence and adult life trying to counter this by getting your trade qualification by building your business and by competing in martial arts. However, all of those things were inadequate to deal with the underlying problem being the significant personality disorder.
59
Mr Armstrong described this condition as an underlying vulnerability to drug use. He said that a difficulty emerges when the biological dependency takes place with drugs and it becomes difficult to disentangle what is the drugs and what is the personality disorder. In leading evidence from Mr Armstrong at the plea hearing,
Mr Dickinson drew Mr Armstrong's attention to the personality disorders and the time of the offending. Mr Armstrong was asked to comment on whether he saw a connection between the addiction, the disorders and the offending. Of course this is a difficult matter for Mr Armstrong to respond to in some ways, because of the limitations of Mr Armstrong's knowledge and understanding of the precise facts of the offending behaviour.
60However, Mr Armstrong responded in this way. He said, “the drug addiction or the use of substance in Mr Virgato's case, in the severe way that he did, may become the singular means in which to regulate a dysregulated personality. Without drugs
Mr Virgato could not function, so he became singularly reliant upon drugs in order to essentially self medicate himself. I understand that he was asked to take possession of a package to remove a debt. I suspect that with the amount of drugs that this man was using and obtaining from his dealer, that the prospect of losing that conduit, to get drugs was untenable for him, especially as without drugs he would fail to regulate himself.”61Mr Armstrong went on to say, “I do believe that at least at the time he made the decision to partake in this agreement, his judgement was certainly impaired, he was irrational. He was in a state where he is a man who has no boundaries. Who is propositioned by his alleged dealer to do something for him and Mr Virgato has shown that he has been unable to really say no in any part of his life and as a result has been stood over. Now, that's a characteristic aspect of a dependant personality.”
62Moving forward to the present time, Mr Armstrong stated that he is impressed with your recovery. You are doing all the things that would be expected for a positive recovery. You no longer associate with the peer group that previously defined you, which is one of the primary predictors of relapse.
63Your mental state was assessed, prior to the plea hearing, as stable. That was corroborated through a second round of clinical testing, further clinical testing produced results that were consistent with your own narrative about your improvements and also consistent with the narrative offered by your father and what he has observed of you over the past three years. Mr Armstrong stated that these profiles are very accurate, they are well accepted test measures. These test results for you were promising, they are within normal limits.
64
Mr Armstrong stated that this is very promising, and he was impressed with the direction in which you were going. Mr Armstrong further stated that you are doing very well in your rehabilitation particularly considering the interaction of
COVID-19. Mr Armstrong was impressed with the reconciliation of your family relationships and stated that those are significant protective factors having a positive effect. Mr Armstrong was impressed with the ongoing motivation that you have demonstrated. Mr Armstrong expressed concerns about you being placed in an incarcerated environment. He stated that individuals with your personality profile are likely to struggle to assert boundaries and in Mr Armstrong's view you would be particularly vulnerable within a prison environment.
65Mr Armstrong expressed the view that imprisonment would likely impact negatively on your mental health in a severe way and destabilise you, where your personality is now stable. Mr Armstrong stated that upon imprisonment your mental state would be likely to deteriorate. You would potentially see a re-emergence of some of the personality features creating the risk of a setback in the progress that you have made.
66In cross-examination of Mr Armstrong, Mr Wilson challenged some of the above conclusions. In particular Mr Wilson suggested to Mr Armstrong that a significant reason why you have made such progress in your rehabilitation is likely to be because you ceased using drugs.
67Mr Armstrong agreed that ceasing drug use will bring about significant progress. However, Mr Armstrong's view, to paraphrase his evidence as I understood it, was that the nature of your drug addiction was such, that you would be unlikely to make significant long-term progress without treatment of the underlying issues.
68Mr Armstrong also maintained the position, that despite you ceasing drug use and making progress in other aspects of your rehabilitation, you still have a personality disorder. In Mr Armstrong's view, that personality disorder is now currently in remission. He said that there has been substantial improvement and reduction in the problematic belief systems that presented at initial assessment. However, he stated that the personality disorder is still present.
69Mr Wilson also put to Mr Armstrong, that given certain aspects of your personal history and the progress you have made, you may in fact be a person who is quite well equipped to do all right in a prison environment. Mr Armstrong disagreed with that proposition and stated that the nature of your personality disorder is such that the prison environment is likely to be detrimental to your progress. Mr Armstrong stated that whilst a prison environment might be good for drug relapse prevention and perhaps for identifying severe disturbances in psychological functioning, he stated, that as far as assisting a person in your position in maintaining supportive relationships and a corrective environment, in his view, prisons are incapable of doing that.
70
I turn to the submissions of the parties on the Verdins issue. In written submissions filed for the plea hearing, Mr Dickinson submitted that all of the limbs of Verdins are enlivened in this case. Mr Dickinson referred to me the case of
Brown v The Queen[4]
as authority for the proposition that Verdins principles are appliable for an offender with a personality disorder.
[4] Brown v R [2020] VSCA 212.
71At the plea hearing, Mr Dickinson submitted that the first limb of Verdins is enlivened and that your moral culpability for this offending is reduced, due to the existence of the personality disorder. That affects the punishment that is just in all the circumstances and denunciation is less likely to be a relevant sentencing objective.
72Mr Dickinson submitted that the second limb of Verdins is enlivened in such a way that your condition has a bearing on the kind of sentence that is imposed, and the conditions in which it should be served. He submitted that your impaired mental functioning, in combination with other matters in mitigation, may bring the kind of sentence that is available within the range that is capable of being dealt with by a recognisance release order.
73Mr Dickinson submitted that limbs 3 and 4 of Verdins are engaged, and that general and specific deterrence should be modified accordingly. He submitted that because of your impaired mental functioning you are not a good vehicle for sending a message of deterrence and that whether by way of the fourth limb of Verdins, or as a result of other matters in mitigation, specific deterrence should not play a significant role in the sentence that I impose.
74Mr Dickinson submitted that the sixth limb of Verdins is enlivened as a result of the evidence of Mr Armstrong, that there is a serious risk of imprisonment having an adverse effect on your mental health.
75In written submissions filed on behalf of the prosecution of the plea hearing, Mr Wilson submitted that the written psychological reports filed by the defence did not provide an evidentiary basis for the operation of any of the six limbs of Verdins. I note that that submission was made prior to the viva voce evidence of Mr Armstrong at the plea hearing.
76In oral submission at the plea hearing and after Mr Armstrong's evidence, Mr Wilson made further submissions with regard to the principles of Verdins. Mr Wilson submitted that as to limb 1, any reduction in your moral culpability that may follow the evidence of Mr Armstrong would be a modest one.
77
Mr Wilson acknowledged that if I were to find that there is a sensible causal connection between the personality disorder and the offending,
Brown v The Queen
is authority for the proposition that personality disorders in theory can enliven the principles in Verdins. However, Mr Wilson submitted that I should have regard to the nature of your conduct in this offending and to what you actually did. He submitted that this was not a spur of the moment decision, but rather a series of actions over a week or so, that involved taking a calculated risk.
Mr Wilson submitted that any reduction in your moral culpability would be a modest one. Similarly, he submitted that any moderation of general deterrence would also be a modest one.
78As to the fourth limb Mr Wilson conceded that specific deterrence does not play a significant role in the overall synthesis of matters in this sentencing exercise.
79As to limb 5, Mr Wilson provided some challenge to the evidence of Mr Armstrong, but accepted that prison will be difficult. As to limb 6, Mr Wilson submitted that a serious risk of imprisonment having a significant adverse effect on an offender's mental health is a high hurdle that has not been made out in this case.
Analysis
80I turn to the analysis of the arguments in relation to Verdins. First, I am mindful of the statements of the Court of Appeal in Brown, where the court stated a point of particular emphasis in Verdins, was the sentencing court should not be concerned with diagnostic labels which by themselves, could provide no assistance in assessing the impact of the relevant condition of the offender at the relevant time. Instead, the court's assessment should depend upon and be informed by what the expert evidence shows.
81Further, the Court in Brown stated that what matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time. And that the sentencing court needs to direct its attention to how the particular condition is likely to have affected the mental functioning of the particular offender in the particular circumstances, or is likely to affect him or her in the future.
82
I note in relation to Mr Armstrong's qualifications that he is a registered psychologist with the Australian Health Practitioner Regulation Agency. He has over 20 years' experience working with individuals presenting with complex psychiatric disorders. He has assessed and treated several thousand cases, suffering a complex spectrum of problems, including personality disorders, psychiatric illness and drug and alcohol disorders. He has accumulated close to
20,000 hours of face-to-face experience in the assessment of
psychiatric personality disturbance and drug and alcohol addiction.
83I note Mr Armstrong's diagnoses of dependent personality disorder with features of narcissistic personality disorder and the diagnosis of stimulant use as well as opioid and anxiolytic substance use disorders.
84Mr Armstrong described a very long pattern of emotional disturbance in you and that your identity failed to develop in a normal way. Specifically, that you have felt chronically inadequate. Mr Armstrong described these features as including an inability to self regulate. Mr Armstrong's evidence was that your polysubstance abuse problem developed at least in part as a method of self regulation and self medication.
85
You saw drugs as the only singular means to regulate yourself at the time. Your
polysubstance abuse problem became entwined within your disturbed personality.
Mr Armstrong described this as including the development of a sense of entitlement and an obsession with the drug cocaine.
86Mr Armstrong described you as predominantly a passive, needy and demanding individual. You present with chronic difficulty expressing disagreement with others because of a fear of loss of support or approval. You have presented with chronically low self esteem and self confidence. You will go to excessive lengths to obtain approval to the point of doing things that lead to your own suffering. The features of narcissism in your presentation including a tendency to display a sense of entitlement. Mr Armstrong described in his evidence the relationship between your stimulant use disorder and the anxiolytic substance use disorder. He described it as two opposing forces.
87
The use of the stimulant drug cocaine provides an effect that in time drops out of the system and leads to withdrawal. That withdrawal includes symptoms of agitation and anxiety. Anxiolytic drugs such as Xanax are then used to, as
Mr Armstrong said, ‘take the edge off the effects of cocaine use’. Similarly, ‘Valium is used to sleep off the effects of withdrawal. The person will then wake in the morning feeling groggy associated with the medication and return to cocaine to counter that grogginess.’ Of course, to a large extent this must be seen as a fairly standard description simply of addiction. It is the long experience of courts that people who experience addiction, will often be driven to commit crimes to satisfy their addiction.
88As I understand the authorities in this area, that addiction per se does not provide a basis for mitigation in the sense that it does not lower the moral culpability nor reduce the need for general deterrence. However, it does seem that where an underlying disorder in the form of impaired mental functioning exists, that may in appropriate cases be a basis for mitigation through the application of the principles in Verdins.
89
I observe that the conduct that makes up this offending must be described as deliberate conduct, occurring over a period of at least a week. It involved you making efforts to collect the package, including a trip to the TNT depot, where there was interaction with staff there, and the deliberate trip to the address at
64 Kinsale Street, Reservoir for the purpose of receiving the package. This conduct was not impulsive or spur of the moment. It was not a singular or one-off act. It involved a level of planning, coordinated effort and some persistence on your behalf. However, I also note the evidence of Mr Armstrong, that at the time of this offending, he said your judgement was certainly impaired, you were irrational, you were in a state where, in his hand, you were a man who has no boundaries.
90It seems to me that the resolution of this issue is a difficult and complex exercise and I must take care to look carefully at what the evidence says about your disorder and mental functioning and also look carefully at the nature of your conduct in the offending.
91I must also take care to distinguish, as far as is possible, the effects of your personality disorder from what may have been simply the effects of drug addiction. Having said that, your condition of drug addiction combined with your progress in rehabilitating yourself from that condition is relevant in other ways to my assessment of your prospects of rehabilitation.
92But for the purposes of the Verdins issue, in the end I am prepared to accept that you did suffer from impaired mental functioning in a way that was relevant to your offending and relevant to the present sentencing exercise.
93I am prepared to accept that impaired mental functioning provides some reduction in your moral culpability for the offending. However, in all the circumstances of this case, I am of the view that that reduction, should only be a modest one.
94Similarly, I am of the view that the existence of impaired mental functioning in this case moderates the extent to which the sentence that I impose upon you should be used to express general deterrence. However again, I am of the view, that this moderation should only be a modest one.
95In all the circumstances, I am not of the view that your impaired mental functioning and its impact on the sentencing exercise either on its own or in combination with other mitigating features, has any significant bearing on the kind of sentence that must be imposed for this offence. I am not of the view that these principles enable the sentence to be moderated to the extent that it is capable of then being dealt with by way of a recognisance release order.
96I am of the view that specific deterrence should play some role in the sentence imposed, however, in all the circumstances of this case, in particular, including your lack of prior convictions, lack of subsequent offending and demonstrated rehabilitation I am of the view that specific deterrence does not carry any significant weight in the sentencing exercise.
97
As to limb 5 of Verdins, I am satisfied that your condition as described by
Mr Armstrong is a matter that will affect your experience of prison. Mr Armstrong gave evidence that, in his opinion, placing you in a prison environment will likely trigger the features that have defined your personality disorder. I do accept this as a matter of some significance. Mr Armstrong also gave evidence that ongoing treatment and support for a person with your condition requires surrounding the person with supportive relationships and a collective environment, so that they can improve on themselves, especially within a relationship context. Mr Armstrong said that whilst prison may be good for drug relapse prevention, he said ‘as far as assisting the individual to manage maintaining corrective relationships within a prison environment, prisons are incapable of providing that in my view’.
98It seems to me that there are two ways of looking at that last piece of evidence. First, it suggests that a prison environment is unlikely to assist in the continued rehabilitation from your condition. Second, it suggests that a prison environment is likely to be counterproductive to progress and it will likely trigger the features that have defined your personality disorder.
99I acknowledge that the sixth limb of Verdins should be viewed as a reasonably high hurdle. As a result of the above assessment of Mr Armstrong, I do take the view that the sixth limb of Verdins is enlivened in that there is a serious risk of imprisonment having a significant adverse affect on your condition being factor tending to mitigate punishment.
100
I move on now to other matters put in mitigation. It seems to me that a very significant matter in this case is the matter of delay. You were charged in
July 2019, you spent 30 days in custody before being released on bail on
7 August 2019. You were then bailed with a significant surety and other bail conditions. You remained on bail for a period of two years and seven months, before your trial commenced on 28 February 2022. I am unaware of the precise reasons for this delay; however this period of time is largely reflected by a substantial portion of the period of the COVID-19 pandemic. It is now well understood that the lockdowns associated with the COVID-19 pandemic had a significant effect on the criminal justice system in the State of Victoria.
101It led to the suspension of all jury trials for very significant periods of time throughout the years 2020 and 2021. It also caused a significant impact on the operation of the prison system within Victoria and the experience of those incarcerated within that system. Whilst your initial period of 30 days in custody pre-dated this time, your admission into custody after your plea hearing occurred during this time, where as I understand it, prisoners received into the prison system, underwent a period of isolation in lockdown before being placed within the mainstream prison environment. It is my understanding that prisons are still affected to some extent by the presence of COVID-19 within the community and its impact on the prison system. Although this will be a change of circumstance.
102It is the experience of the courts in Victoria that prisoners sentenced to shorter terms of imprisonment may spend their entire term in conditions that are considerably more onerous and burdensome than the normal experience of prison. Given the length of the sentence that I must impose upon you, I do not see that as a matter playing a very significant role in the sentencing exercise. However, I do take into account the fact that your experience of prison since your remand at the conclusion of the plea hearing has been during this period of time.
103Perhaps the greater relevance of delay is related to the progress that you have made in your rehabilitation during the period of that delay and the time that you have been on bail. In my view, delay is always undesirable. The resolution of criminal charges, some three years after the commission of the offence, reflects an undesirable state of affairs which was not in any way your fault.
104During the time of that delay you spent 91 days at a residential rehabilitation facility. I received two brief report from the Habitat Therapeutics Private Hospital. Those reports provided some information about the circumstances and conditions of the therapeutic environment. They described a structure daily program including individual counselling, individual and group therapy, work tasks, educational groups, along with the attendance at Narcotics Anonymous meetings. There were supervised, scheduled and random saliva drug testing conducted at a minimum of twice per week.
105At the facility there is 24 hour staffing, CCTV monitoring in all areas, and the participants are closely monitored at all times. Participants are not permitted to have mobile phone access, nor identification or access to money during their stay. The facility oversaw bail conditions and undertook to notify the court if any breaches of bail and the informant if any breaches of bail conditions arose.
106You remained in that facility for a period of 91 days and as I have already stated you were reported to participate well, and you were appointed as a senior and mentor to new clients entering the program. The supervisors of that program stated that they were extremely happy with your progress throughout your stay at that facility.
107The principles from Akoka[5] are that I can take that time into account in two ways. First, I can have regard to the fact that you have spent 91 days in a somewhat restricted environment. Whilst this is not imprisonment and cannot be taken into account in the same way, I can have regard in a broad sense to the fact that you voluntarily spent 91 days in a restrictive environment and participated in rehabilitation programs whilst there.
[5] Akoka v R [2017] VSCA 214.
108
The second way in which I can take this into account, is that it demonstrates your rehabilitation. In my view, it demonstrates an intention and willingness on your part to engage in and participate in such a program. It demonstrates progress
already achieved, it also allows for a positive assessment of your future prospects of rehabilitation.
109
In addition to that, I also take into account the remainder of the time that you spent in the community on bail. You did not reoffend in that time and according to the evidence of Mr Armstrong, you demonstrated further progress in your rehabilitation from drug use and also progress in relation to the treatment of your personality disorder. You attended and participated in counselling with Ms Amanda Brown from November 2019 to March or April 2020. You participated in counselling with
Ms Jeanette Drysdale-Stevens of Anglicare from mid-2020 to the time of the plea hearing. I was told, and I accept, that you were drug free and maintained total abstinence from drugs during your whole time on bail.
110I see these as very significant matters, they speak extremely well of you, both as to the way in which you used your time on bail to rehabilitate yourself from the circumstances that contributed to the commission of this offence. They also allow for a positive assessment of our future prospects of rehabilitation. In my view, these matters all mitigate the sentence that I must impose. I also have regard to a bundle of personal references that were tendered on your behalf. I have read those references and I take them into account.
111
I now turn to the general prosecution submissions at the plea hearing. Mr Wilson filed written plea submission on behalf of the prosecution, a document dated
1 May 2022, the document referred me to the provisions in s16A(2) of the Commonwealth Crimes Act[6] that I must have regard to. The offence that you were found guilty of by the jury carries a maximum penalty of life imprisonment. I must regard this as a very serious offence.
[6] Crimes Act 1914 (Cth).
112You attempted to possess a substance and were at least reckless as to that substance being a border controlled drug. The quantity involved on analysis was 1.25 times a commercial quantity. Whilst that is a substantial quantity of the drug cocaine, I do have regard to the fact that is towards the bottom end of the range created by the commercial quantity for that drug. This instance of the offence must be distinguished from examples of the offence where many multiples of a commercial quantity are involved.
113
Mr Wilson directed my attention both in written and oral submissions to the
New South Wales Court of Criminal Appeal decision in The Queen v Nguyen[7] and the Victorian Court of Appeal decision in Nguyen v The Queen and
Phommalysack v The Queen
.[8] I will not set out or repeat the principles of Phommalysack here in detail, except to say that I accept the matters that I must have regard to as including the following.
(a) First, the weight of the drug imported is an important and highly relevant factor in determining the objective seriousness of the offence. Although weight is not only or principle factor in determining sentence.
(b) Second, I should not seek to characterise your role with the use of any label. I must look at what you actually did and the steps actually taken by you to participate in the offending.
(c) Third, as a matter of common sense it should be inferred, unless there is evidence to the contrary, that a person who is involved in the illegal trade in this way, is doing so for profit. The fact that an offender needs money to pay off a debt, does not necessarily affect culpability.
(d) Fourth, as a general rule, general deterrence is to be given significant weight in the sentence and stern punishment will almost always be warranted.
[7] R v Nguyen (2010) 205 A Crim R 106.
[8] Phommalysack v R [2011] VSCA 32.
114That is of course just a brief statement of the principles that are outlined at pp2-4 of the written submissions filed on behalf of the prosecution. I have, of course, read all of those principles and I take them into account.
115
Similarly, I will not set out the remainder of the matters raised in the Crown's submissions, but I have read that document carefully and I take those matters into account. Mr Wilson also provided me with a table of five comparative cases. All sentences imposed for offending in broadly similar circumstances with similar quantities. I read that document and each of the decisions where available. Other cases were also discussed during the course of the plea hearing such as
Hon Wing Lau v The Queen
. And the cases of Salizar and Palmisano. I note that in most, if not all of those comparable cases that were presented and discussed at the plea hearing, they involve cases where the offender pleaded guilty.
116Of course, I have regard to the limitations on the use to which comparable cases can be put and I have regard to the decisions of the High Court and statements of principle in The Queen v Kilic,[9] and The Queen v Pham.[10] In the end Mr Virgato, I must sentence you for your conduct in this offending. I must impose a sentence that adequately punishes you for your conduct, with the appropriate moderation as described above, I must impose a sentence that has the effect of deterring other persons who may be tempted to engage in this kind of conduct.
[9] R v Kilic [2016] HCA 48.
[10] R v Pham {2015] HCA 39.
117I must take into account in the appropriate way, your age, your lack of prior convictions, your otherwise good character. I must take into account the time you spent on bail, you spent at a residential therapeutic centre, your ongoing counselling treatment and the time that you spent in the community during the delay in the finalisation of these matters.
118In all the circumstances, I am prepared to assess your prospects of rehabilitation as being excellent and I intend to impose a sentence upon you today that allows, as far as possible, for your rehabilitation.
119In the end, sentencing in a case such as this, involves balancing a number of competing sentencing principles. In doing the best I can to balance those principles, you will be sentenced as follows.
Sentence
120On the charge of attempting to possess a commercial quantity of a border controlled drug you will be sentenced to a period of seven years and nine months' imprisonment. I order that you must serve a period of four years before being eligible for your release on parole. Against that sentence I declare that you have served 169 days in custody and order that that number of days be deducted administratively from your sentence.
121
On the charge of possessing a drug of dependence contrary to s73(1) of the
Drugs, Poisons and Controlled Substances Act
Victoria, where you pleaded guilty before the jury, you will be convicted and fined $100.
122
On the second indictment, on the charge of possessing a drug of dependence, namely the anabolic and androgenetic steroidal agents, contrary to s73(1) of the
Drugs, Poisons and Controlled Substances Act
, you pleaded guilty before me at the plea hearing to that charge, you will be convicted and fined $400. I do not believe that it is necessary for me to make 6AAA declarations in relation to the second and third sentence that I imposed. Are there any other matters?
123MR DICKENSON: I seek a stay on the fines, Your Honour.
124HIS HONOUR: Any particular length?
125MR DICKENSON: Yes, three months.
126HIS HONOUR: Three months. A stay for three months will be granted.
127HIS HONOUR: Thank you both for your assistance in this matter.
128MR WILSON: May it please the court.
129HIS HONOUR: Thank you. We'll adjourn the court.
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