Director of Public Prosecutions v Adler
[2023] VCC 384
•16 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01841
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Troy Adler |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2023 | |
DATE OF SENTENCE: | 16 March 2023 | |
CASE MAY BE CITED AS: | DPP v Adler | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 384 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Drug trafficking – Large commercial quantity of heroin – Knowingly dealing with proceeds of crime – $774,400 – Quantitative hierarchy of Drug offences – No prior convictions – Not a courier but not a principal – Long history of drug addiction – Relevance for sentencing – Good character – Remorse – Good prospects – Added burden of imprisonment – Totality – Deterrence – Standard sentencing regime
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Dao v The Queen [2014] VSCA 93; R v Bernath [1997] 1 VR 271; Koumis v The Queen [2008] VSCA 84; Rahmani v The Queen [2021] VSCA 51; Al Janabe v The Queen [2021] VSCA 252; R v Verdins [2007] VSCA 102; Gregory v The Queen [2017] VSCA 151; Worboyes v The Queen [2021] VSCA 169; DPP v Kumas 2021] VSCA 215; Quah v The Queen [2021] VSCA 164; Bruce v The Queen [2022] VSCA 100; Brown v The Queen (2019) 59 VR 462
Sentence: Total Effective Sentence of 11 years and 9 months’ imprisonment – Non-parole period of 7 years and 1 month – s 6AAA declaration – Total Effective Sentence of 15 years and 2 months’ imprisonment – Non-parole period of 9 years and 11 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Champion | Office of Public Prosecutions |
| For the Accused | Mr P. Dunn KC | Melasecca, Kelly and Zayler |
HIS HONOUR:
1Troy Adler, you have pleaded guilty to:
(a) Trafficking in a drug of dependence (heroin) in a quantity that was not less than a large commercial quantity contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which carries a maximum sentence of life imprisonment and a standard sentence of 16 years (charge 1);
(b) Dealing with the proceeds of crime knowing that it was proceeds of crime contrary to s 194(2) of the Crimes Act 1958 (Vic) (Crimes Act) which carries a maximum sentence of 15 years’ imprisonment (charge 2);
(c) Possession of a drug of dependence (methylamphetamine, methadone and diazepam) contrary to s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which carries a maximum sentence of 1 year imprisonment (charge 3); and
(d) Trafficking in a drug of dependence (MDMA) contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which carries a maximum sentence of 15 years’ imprisonment (charge 4).
2Charges 2 and 3 are rolled up charges. Charge 2 is concerned with two amounts of money; charge 3 is concerned with three different drugs.
3You are to be sentenced on the basis of the Summary of Prosecution Opening dated 15 November 2022 which is an agreed document.[1] The following overview of your offending is drawn from the Summary.
[1] Exhibit P1.
Offending conduct
4In 2021, the Victoria Police Major Drug Squad investigated the distribution and trafficking of drugs of dependence by you and two co-accuseds, Eleftharios ‘Terry’ Katsonis and Jelica Poljakovic and an unknown person using the pseudonym ‘Balance’.
5Between 7 September 2021 and 28 November 2021 you were seen on closed circuit TV meeting on several occasions with Katsonis at Craigieburn Plaza. On those occasions, you are seen providing large bags to Katsonis in exchange for currency.
6Also during this period you had a number of conversations about heroin trafficking with ‘Balance’ and ‘Katsonis’ using encrypted applications. During these discussions there are references to the price to be paid.
7Between 17 and 18 November 2021 you sought permission to supply ‘half a plate of hot’ to a person not known to ‘Balance’. He agreed to this but wanted to know the price and instructed you to be sure the person was not a ‘rat or jak’.
8On 28 November 2021, ‘Balance’ instructed you to transport the ‘coin’ you had at your residence to Katsonis. Balance told you that Katsonis would then provide you with ‘another lot’ which you were to transport to the ‘Wickr guy’ in Glen Waverly.
9At approximately 10.45 am on 29 November you met Katsonis in Craigieburn. He placed a large black sports bag into the boot of your car and you gave him a bag. You then left advising the ‘Wickr guy’ that you would arrive in Glen Waverly at 11.46 am. You were given an address and told that when you got there you would be told the ‘drop location’.
10At approximately 11.53 am you were approached by Police. You told them that there were drugs in your car which they searched. They found:
·3 ‘foils’ containing Heroin;
·2 x clear reusable bags containing Methylamphetamine; and
·A wallet containing your identification documents, $510.00, and 3 hand written notes, two being consistent with a ‘tick book’.
11You were arrested. Police opened the black bag you left at the ‘drop’ site and found that it contained $750,400.00. You made a number of admissions to police including that you believed the bag contained cash but did not know the person from whom you had received the bag.
12When police informed you that they would search your house under a search warrant, you told them that around 3-5 kg of heroin could be found in a fridge in the laundry and between $24,000 and $26,000 would be found in a cupboard in the bedroom.
13Later that day, the police executed a search warrant and in the back shed, laundry and bedroom they found significant quantities of Heroin, Diazepam and Methylamphetamine, a number of items and pieces of equipment commonly used in the drug trade such as resealable bags, cash counting machines and heat sealers. They also found $25,560 in cash and a number of mobile phones.
14The drugs were analysed and what you had at home was:
·9.8 kg of Heroin;
·499.5 g of MDMA;
·2.3 g of Methamphetamine; and
·Less than 2 g of Diazepam.
15You were charged and remanded in custody where you remain. After negotiations by your lawyers with the prosecution, a plea resolution was reached on 27 September 2022 and, you pleaded guilty at a committal mention on 11 October 2022.
Objective Seriousness of the Offending
16The most serious charge is clearly charge 1. The large commercial quantity for Heroin is 750g. You trafficked more than 13 times that threshold. In the quantity-based system of drug trafficking law, this alone marks your case out as a very serious example of trafficking in a drug of dependence. Although quantity in such cases is not necessarily determinative of seriousness ‘it is a factor of the utmost significance’.[2]
[2] Dao v The Queen [2014] VSCA 93, [14].
17It is also significant that, although you are charged with trafficking on a single day, as the prosecutor Ms Champion submitted the uncharged acts revealed by the events in the proceeding period of over 2 months provide contextual background to your offending. This was not isolated offending and that is relevant to its objective gravity.
18Your involvement in the events between September and November 2021, taken together with the presence of both large quantities of Heroin, cash and what are sometimes described as the ‘accoutrements’ of drug trafficking[3] in various locations of your private house, suggest that you were an ‘active participant in the drug trafficking enterprise’.[4] You also had some independence in sourcing new clients under the guidance of ‘Balance’. Your counsel Mr Dunn KC accepted that you were more than a mere courier but not a principal.
[3] See, e.g., Al Janabe v The Queen [2021] VSCA 252, [10].
[4] Outline of Prosecution Submissions on Sentence dated 17 February 2023, [8].
19Charge 2 is a serious example of the offence of knowingly dealing with the proceeds of crime. Once again, the principal feature is the sheer amount of money – over three-quarters of a million dollars. Although you face only one charge under s 194 of the Crimes Act, the sentence I impose must reflect that the prosecution has ‘rolled up’ two separate instances of dealing – the money in the black bag and the money hidden at your house. The ‘dealing’ in relation to the larger amount is more than just possession – you received it from Katsonis and drove with it to deliver it.
20You face one maximum penalty but are to be sentenced having regard to the two discrete acts of ‘dealing’ on your part.
21The quantities of drugs that you possessed for the purposes of charge 3 were very small. I accept they were for your own use.
22However, charge 4 is more serious. 499 g of MDMA is just under the commercial quantity of 500 g. Your possession of the drug was for the purposes of sale.
23Overall, I assess your case as a very serious example of these types of offences.
Personal circumstances
24With his customary eloquence, your counsel Mr Dunn KC outlined your difficult childhood and subsequent battles with depression, anxiety and crippling drug addiction.
25You were born in Melbourne in 1973. Your parents separated when you were young and you lived with your mother who was physically and verbally abusive. You struggled at school due to your behaviour. You attended Mt Scopus college but did not fit in. Your mother remarried when you were 12 and both your mother and step-father were heavy drinkers. You completed year 12 with a bare pass.
26You began drinking alcohol when you were 13. After your mother’s death by suicide when you were 24 you started taking Ecstasy. By the time you were 27 you were a regular user of Ecstasy, Speed and Ice.
27Despite your drug use you maintained full time employment with a logistics firm until you were 34. You then took a more senior managerial position and worked there until you became a full time father at the age of 41.
28You married Jacqui in 2006 when you were 36 and your son was born in 2009. Your daughter was born in 2011 when you were 38. Your wife works as a finance director. She financially supported your drug habit until you were remanded for this offending in 2021 at the age of 48.
Mental Health and Drug Use
29Luke Armstrong, consultant psychologist has prepared two reports about you.[5] He has diagnosed you as suffering from Stimulant, Opioid and Anxiolytic Use Disorders. Mr Armstrong describes you as a ‘trauma survivor’ and considers that your drug problem is ‘entwined with underlying mental health problems which have characterised [your] life from infancy…’.[6] Mr Armstrong opines that you are a ‘complex client’.
[5] Psychological Report prepared by Luke Armstrong dated 3 February 2022 (Exhibit D1) & Psychological Report prepared by Luke Armstrong dated 3 February 2023 (Exhibit D2).
[6] Exhibit D1, 6.
30The following appears in Mr Armstrong’s most recent report under the heading ‘Offending: Summary’
The circumstances of offending are for the court to decide. However, Mr Adler reports that in the lead up to his arrest, he had again put significant strain on the family’s financial position, and the marriage as a consequence of his continual need to access funds from his wife to secure drugs for himself.
Mr Adler concedes that when circumstances changed within the milieu of his drug associations, an opportunity became available for him to become a driver, he accepted the role: “It was a means to an end, I didn’t have to go to my wife for money for drugs”. Mr Adler accepts the very serious gravity of his offending, there was no attempt by him to rationalise his decision making.
In reflection, he can now articulate that he had “blinkers on”, gave little thought to his decisions and the consequences of engaging in serious drug crime, for example being arrested and removed from his family. And in addition, the very serious consequence of the offending itself. Mr Adler concedes that at the time “fulfilling what my body thought was the most important thing on earth [ingesting drugs]” compelled him to offend. Mr Adler now reflects: he remembers thinking “this is your ticket not to panic anymore, and not to ask Jacque for money”[7]
[7] Exhibit D2, 2.
31You have made multiple attempts at drug rehabilitation. Mr Dunn submitted that these had been unsuccessful until you were prescribed methadone in prison. Mr Dunn explained that you accept you will need to be on methadone for the rest of your life.
32Mr Armstrong reports that your substance use disorders are now in remission however your Personality Disorder is in ‘less of a remission status’.[8]
[8] Exhibit D2, 2.
33Mr Armstrong describes your remorse as genuine. He reports that now that drugs are no longer your singular preoccupation, your family is front and centre. You are consumed by guilt that you will not be there for them in the crucial part of their development. This is an all too familiar example in this court of the long-term effects of drug addiction. It is what makes drug trafficking such a serious crime.
34Mr Armstrong refers to your attempts to better yourself in gaol.[9] He maintains his view that you are a good parole prospect as a first-time offender who is genuinely remorseful and is internally motivated. I have taken this into account in setting an appropriate non-parole period.
[9] Bundle of Prison Program Certificates (Exhibit D3).
35Mr Armstrong is also of ‘no doubt’ that a long period in custody will cause a further deterioration in your mental health above and beyond the effect it would have on a person without your ‘complex dual diagnosis profile’.[10] This enlivens limb 6 of the Verdins principles and entitles you to a moderate reduction on sentence.[11]
[10] Exhibit D2, 4.
[11] R v Verdins [2007] VSCA 102, [32].
36Your wife Jacqui Adler wrote a letter to the court dated 14 February 2023.[12] She has known you for over 20 years, been married to you for 17 years and the two of you have two children. In her letter, Ms Adler describes you as remorseful. She also informs the Court that she and your family will be there to support you whatever the outcome of the hearing. I have taken this support into account in setting your non-parole period.
[12] Exhibit D4.
Submissions
37Ms Champion for the prosecution provided the Court with helpful and comprehensive submissions. Ms Champion submitted that ‘the only available sentence is a term of imprisonment to be immediately served with the fixing of a non-parole period’.[13]
[13] Outline of Prosecution Submissions on Sentence dated 17 February 2023, [28].
38Mr Dunn accepted that imprisonment is the only penalty but submitted that you should be given a sentence ‘that is not crushing, but one that will afford [you] a significant period of time on parole so his re-integration into the community is more likely than not’.[14]
[14] Outline of Defence Sentencing Submissions dated 14 February 2023, 3.
39Mr Dunn submitted on your behalf that your offending, which he conceded was very serious, needs to be understood in the context of both your very difficult childhood and your resultant long term drug addiction. He submitted that it was your addiction, and the awareness of it by those controlling the drug trafficking business of which you were a part, that enabled you to be exploited ruthlessly by them.
40The prosecution did not dispute Mr Dunn’s submission that you were paid $1,000 per week which was spent entirely on drugs. However, yours is not a case of street level drug trafficking engaged in by an addict ‘in order to gain the wherewithal to satisfy his own craving’.[15]
[15] Cf R v Bernath [1997] 1 VR 271, 275.
41In Koumis v The Queen,[16] the Court of Appeal outlined a number of ‘general propositions about the relevance of addiction to the question of moral culpability and whether it should be viewed as a mitigating circumstance for the purpose of sentence’:
· Drug addiction provides no justification for the purposes of sentencing.
· Drug addiction is not of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate.
· The sentence to be fixed has to reflect the seriousness of the crime of trafficking in substantial quantities of a drug of dependence.
· Denunciation and general deterrence assume particular importance as the purposes to be effectuated by the sentence.
· Generally speaking, addiction and any consequential impairment of judgment, will not have any significant mitigatory effect upon those sentencing considerations.[17]
[16] [2008] VSCA 84, [53].
[17] Koumis v The Queen [2008] VSCA 84, [53] (citations omitted).
42While your drug addiction provides some explanation for your offending, I am disinclined to give it any real weight as a mitigating matter on sentence.
Current Sentencing Practices
43Recent appellate decisions in this State have emphasised that significant terms of imprisonment must be imposed in cases such as yours.
44In Gregory v The Queen[18] the Victorian Court of Appeal held that by setting the maximum penalties it has, the legislature must be taken to have intended sentences ‘well into double figures’ for commercial quantity drug trafficking offences where one or more of five identified features were present.[19] Of those five, two are present here: the quantity involved approaches (in fact exceeds) the large commercial quantity threshold; and the business was conducted for a substantial period.
[18] [2017] VSCA 151.
[19] [2017] VSCA 151, [98].
45Gregory pre-dated the standard sentence regime introduced by sections 5A and 5B of the Sentencing Act 1991 (Vic) (Sentencing Act) which applies in your case. It also pre-dated the pandemic and the substantial discount on sentence that a person who pleads guilty must now receive.[20]
[20] Worboyes v The Queen [2021] VSCA 169.
46Under s 5B(2)(b) of the Sentencing Act, the Court may only have regard to sentences previously imposed for offence as a standard sentence offence. Ms Champion referred the Court to three such cases.
47In Quah v The Queen,[21] the Victorian Court of Appeal referred to both Gregory and the standard sentence for large commercial quantity drug trafficking (16 years) and confirmed the need for increased sentences for upper-level offences of commercial quantity trafficking and for a consequent increase in sentences for large commercial quantity trafficking.[22]
[21] [2021] VSCA 164.
[22] Quah v The Queen [2021] VSCA 164, [55]-[56]; see also Rahmani v The Queen [2021] VSCA 51, [25]-[32].
48The Court referred to the quantity-based nature of the sentencing regime and concluded that ‘other things being equal, an offence of large commercial quantity trafficking which involves … a quantity representing multiples of the large commercial quantity threshold is more serious than an offence of commercial quantity trafficking which involves a quantity representing multiples of the
commercial quantity threshold.[23][23] Quah v The Queen [2021] VSCA 164, [56].
49The sentence in Quah of 15 years for trafficking in a quantity of methylamphetamine, which was the equivalent of 4 times the large commercial quantity, was described on appeal as ‘unremarkable’.[24]
[24] Quah v The Queen [2021] VSCA 164, [58].
50A sentence of 6 years and 6 months’ imprisonment for trafficking 1.9 times the large commercial quantity of methylamphetamine and cocaine was increased on appeal to 10 years in DPP v Kumas.[25] The plea of guilty was early and there were matters in mitigation that the offender was able to point to. He had a prior criminal history.
[25] [2021] VSCA 215.
51In Al Janabe v The Queen,[26] the offender received a sentence of 10 years’ imprisonment for trafficking 12 times the prescribed large commercial quantity of methylamphetamine. The offender, who pleaded guilty, had a limited criminal record and a very difficult upbringing in Iraq. He had provided considerable assistance to the police for which he had received a sizeable discount on sentence.
[26] [2021] VSCA 252.
52Priest JA, with whom Kennedy JA agreed, considered the sentence to be ‘very lenient’.[27] His Honour observed, by reference to Quah, that, but for the assistance provided by the offender, a sentence of 15 years’ imprisonment would have been appropriate.[28]
[27] Al Janabe v The Queen [2021] VSCA 252, [34].
[28] Al Janabe v The Queen [2021] VSCA 252, [33].
53Finally, in Bruce v The Queen,[29] a sentence of 12 years’ imprisonment for trafficking a large commercial quantity of ice was described on appeal as ‘modest’. The quantity trafficked was 4.8 times the large commercial quantity; the offender was ‘the sole principal of the trafficking business; he was purchasing quite large quantities for on-sale; and his sole motive was profit’.[30]
[29] [2022] VSCA 100.
[30] Bruce v The Queen [2022] VSCA 100, [5].
Consideration
54The starting point is the maximum penalty prescribed for the offence – life imprisonment.
55I am also required to have regard to the ‘standard sentence’ of 16 years. This is prescribed by the Sentencing Act as a hypothetical ‘middle of the range’ offence on the basis of ‘objective factors’ only. As the Court of Appeal explained in Brown v The Queen,[31] I must keep in mind the notion of an offence ‘in the middle of the range of seriousness’.[32]
[31] (2019) 59 VR 462.
[32] Brown v The Queen (2019) 59 VR 462, [57].
56The principal sentencing considerations are general deterrence and denunciation ‘in order to send the clearest message to those that would consider engaging in trafficking in drugs … that, if they do so, they will be sentenced to serve lengthy periods of imprisonment’.[33] Given your lack of prior offending, specific deterrence is less prominent as a sentencing consideration.
[33] DPP v Kumas [2021] VSCA 215, [49].
57You have no prior convictions and you are generally of good character. However, as has been often recognised, ‘past good character is of lesser weight in sentencing for large scale drug trafficking offences’. This is because general deterrence is at the forefront of sentencing considerations and ‘that applies to persons of past good character as much as to inveterate criminals’.[34]
[34] Dao v The Queen [2014] VSCA 93, [9].
58Despite the very serious nature of your offending, and having regard to your acceptance of responsibility at a very early stage, the heightened utility of your plea in current circumstances as well as your lack of prior convictions and the other matters in mitigation described above, I have imposed a sentence on charge 1 that falls below the standard sentence.
Orders
59I make the following orders:
(a) On charge 1 - Trafficking in a drug of dependence (heroin) in a quantity that was not less than a large commercial quantity - you are convicted and sentenced to 10 years and 6 months’ imprisonment;
(b) On charge 2 - Dealing with the proceeds of crime knowing that it was proceeds of crime - you are convicted and sentenced to 3 years’ imprisonment;
(c) On charge 3 - Possession of a drug of dependence (methylamphetamine, methadone and diazepam) - you are convicted and sentenced to 3 months’ imprisonment;
(d) On charge 4 - Trafficking in a drug of dependence (MDMA) - you are convicted and sentenced to two years’ imprisonment.
60The sentence on charge 1 is the base sentence.
61I direct that 9 months of the sentence on charge 2 and 6 months of the sentence on charge 4 be served cumulatively on the sentence imposed on charge 1 and on each other. The sentence on charge 3 is to be served concurrently with the charge 1 sentence.
62The Total Effective Sentence is 11 years and 9 months.
63In fixing a non-parole period under s 11A(4)(c), I have had regard to your good character, family responsibilities, the burden of your imprisonment and my assessment of your prospects of rehabilitation. I fix a period of 7 years and 1 month before you are eligible for parole.
64Pursuant to s 18 of the Sentencing Act, I declare that 472 days already served by way of pre-sentence detention, not including today, be reckoned as time served in respect of the sentence I impose today.
65I declare, pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have imposed a total effective sentence of 15 years and 2 months’ imprisonment and a non-parole period of 9 years and 11 months.
66I make the disposal order and the forfeiture order sought by the prosecution noting that they are unopposed.
67Finally, having been convicted on charge 1 for a ‘serious drug offence’, you are declared under s 89DI of the Sentencing Act to be a serious drug offender.
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