Director of Public Prosecutions v Assaad
[2022] VCC 1422
•26 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00259
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHADI ASSAAD |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2022 | |
DATE OF SENTENCE: | 26 August 2022 | |
CASE MAY BE CITED AS: | DPP v Assaad | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1422 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Drug trafficking – Large commercial quantity of methylamphetamine – trafficking in methyl alpha-acetylphenylacetate (MAPA) and heroin – trafficking by possession – quantitative hierarchy of trafficking offences – quantity of methylamphetamine trafficked 33 times large commercial quantity – single instance of offending – utility of early guilty plea at this time – no relevant prior criminal history – previous good character - remorse – personality disorder - application of Verdins principles 1 & 3 – added burden of imprisonment – good prospects of rehabilitation - standard sentencing scheme –general deterrence, denunciation and community protection paramount sentencing considerations – totality
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited:Gregory (a pseudonym) v. The Queen (2017) 268 A Crim R 1; [2017] VSCA 151 – Quah v. The Queen [2021] VSCA 164 – Rahmani v. The Queen [2021] VSCA 51 – Brown v. The Queen (2020) 62 VR 491 – Brown v. The Queen (2019) 59 VR 462; [2019] VSCA 286 – Dimovski v. The Queen [2022] VSCA 6 – DPP v. Yuksek [2022] VCC 683 – DPP v. Natale [2022] VCC 1199
Sentence: Ten years and six months' imprisonment with a non-parole period of six years, four months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coombes | Office of Public Prosecutions Victoria |
| For the Accused | Mr P. Morrissey S.C. | Lawyers Corp Pty Ltd |
| with Mr C. Parkin |
HER HONOUR:
1Shadi Assaad, on 16 August 2022 you pleaded guilty to the following offences:
(a) trafficking in a drug of dependence, namely methylamphetamine, in a quantity that is not less than a large commercial quantity contrary to s71 of the Drugs, Poisons and Controlled Substances Act 1981 ('the DPCS Act'), the maximum penalty for which is life imprisonment;
(b) trafficking in a drug of dependence, namely methyl alpha-acetyl phenylacetate (MAPA), an analogue of phenyl-2-propanone (P2P) contrary to s71AC of the Act, the maximum penalty for which is 15 years' imprisonment; and
(c) trafficking in a drug of dependence, namely diacetylmorphine (heroin), contrary to s71AC of the Act, the maximum penalty for which is 15 years' imprisonment.
2
You were born in July 1991 and at the time of your offending you were
29 years old and living in New South Wales. Save for a minor driving offence[1] you have no prior criminal history.
[1]On 6 June 2012 you were fined $350 for driving on/over a continuous line near a painted island. This prior conviction has no relevance to the sentence to be imposed for this offending.
Circumstances of offending
3The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 22 July 2022 which is the agreed basis upon which you are to be sentenced.
4
On Wednesday 12 May 2021 you and your brother left your apartment in Liverpool, New South Wales at approximately 3.51 am, driving a white
Toyota Aurion sedan that was registered in your name.
5You drove in the direction of Victoria, stopping at the Euroa Service Centre in Victoria at approximately 10.29 am. At this location your brother took over driving the vehicle and you entered the front passenger seat and continued your journey towards Melbourne. To be clear, there is no suggestion your brother was involved in your offending in any way.
6At approximately 11.12 am the vehicle was intercepted by police who were in possession of intelligence indicating the presence of illicit drugs in your vehicle. After confirming your identity the police conducted a search of the vehicle pursuant to the Drugs, Poisons and Controlled Substances Act. Concealed between the boot and rear passenger seat of the vehicle was a false wall, within which a large quantity of methylamphetamine was located in separate Snap Lock bags amongst other items including a black Google phone.
7You were arrested and taken to the Melbourne West police station. You declined to be interviewed, but consented to a police request that you provide a DNA sample and your fingerprints. You were charged and remanded in custody that day.
8
On 2 June 2021 Forensic Officer Joanne Winter from the Victorian Police Forensic Services Department analysed the items seized by police.
Five Snap Lock bags seized from the vehicle were each found to contain methylamphetamine, weighing a total of 25 kilograms and with a purity of
81 per cent. This is the subject of Charge 1, the charge of trafficking in not less than a large commercial quantity of methylamphetamine.
9
Two bundles of white powder were analysed by Ms Winter and determined to be 98.0 grams of MAPA, [2] the analogue of a Schedule 11 drug, P2P, and
15.5 grams of diacetylmorphine,[3] namely heroin. These separate matters are the subject of Charges 2 and 3, trafficking in a drug of dependence.
[2]A trafficable quantity is 3 grams
[3]A trafficable quantity is 3 grams
10As part of its investigation the police analysed encrypted communications on an 'AnOm' platform between a number of users, including those identifying as 'Elii', 'Bigboy' and 'Coldtiny'. GPS co-ordinates connected the 'Elii' handset to your residential address in Liverpool, New South Wales. It is not disputed that you were the person operating this handset.
11On 11 May 2021 the user identified as 'Bigboy' instructed you ('Elii') regarding the collection and transportation of 25 kilograms of illicit drugs from Sydney to Melbourne and the means of storing the drugs. The intercepts capture you referring to the use of 'luggage bags with wheels'. You are later seen on CCTV footage at your apartment in Liverpool pushing such luggage bags to and from your car.
12The user 'Bigboy' instructed you to tell people that 'your brother is having family issues with his wife, so just going away for a week, book a room as a throw off please'. Using the user name 'Elii' you replied, 'I already sorted it cuz, one of my mates lives in Melbourne'. In response the 'Bigboy' user stated, 'Pls make sure your bro doesn't say shit over the phone to his wife'.
13At 10.34 am on 12 May 2021, being the day of your arrest, you sent a message to 'Bigboy' under the name 'Elii' stating, 'Hey cuz. We just stopped to fill up. Hour and a half will be there. My bro is driving now'.
Gravity of offending
14The gravity of the offence of trafficking in a large commercial quantity of drugs is reflected in the maximum penalty of life imprisonment. The quantity-based hierarchy of trafficking offences, and associated maximum penalties, have been 'deliberately constructed to reflect Parliament's view of the ascending order of offence seriousness'.[4] The maximum penalty of life imprisonment reflects that this is an offence of 'the utmost seriousness'.[5]
[4]Gregory v The Queen ( 2017) 268 A Crim R 1, 7 [23]; Quah v The Queen [2021] VSCA 164 at [54]
[5]Rahmani v The Queen [2021] VSCA 51 at [23]
15Here, the magnitude of your offending is marked by the quantity of methylamphetamine that was in your possession for a trafficking purpose. The threshold for a large commercial quantity of methylamphetamine is 750 grams. The amount in your possession represented 33 times this amount.[6] By possessing 25 kilograms of methylamphetamine, the amount in your possession exceeded the threshold for the highest quantitative category by a significant degree.
[6]As a mixture of substances of a drug of dependence – Schedule 11 of the DPCS Act
16In addition, there were separate, albeit smaller, amounts of other drugs in your possession, namely heroin and MAPA, for the purpose of trafficking.
17The quantity of drugs trafficked is, therefore, highly relevant in assessing the objective gravity of such offending, however, it is not determinative. Other factors remain relevant, including the offender's role in the trafficking, the duration of the offending and the motivation of the offender's involvement.[7]
[7]Gregory, [23] – [24]
18I accept that you possessed the drugs for the purpose of trafficking for one day only. However, although this was an isolated event, your offending could not be described as unplanned or spontaneous.
19
In the lead up to leaving New South Wales you were in possession of a device that allowed you to participate in extensive encrypted communications using the 'AnOm' application, with those directing your activities. You allowed others to modify your car by inserting a false wall between the boot and the rear passenger seat. It is significant that you knew you were being asked to transport
25 kilograms of drugs of some description. You were captured on CCTV transferring bags to and from your vehicle in advance of your trip. Although I cannot be satisfied you knew the substance was methylamphetamine, there is no doubt you were aware that by agreeing to transport a large quantity of illicit substances from Sydney to Melbourne you were engaging in serious illegal activity.
20The role you played in this activity is also relevant and, in this case, is revealed by the encrypted messages. There is no evidence that you played any role in the sourcing, preparation or sale of any of the drugs. You did not initiate or orchestrate the drug operation. Your role was a particular one, being to transport the drugs to Melbourne. In undertaking this role, you were clearly being directed by others who could be viewed as being higher up in the criminal enterprise.
21The content of the encrypted communications reveals it was the user 'BigBoy' who directed you regarding the collection of the drugs in Sydney; the transport of the drugs to Melbourne; the method of storing the drugs in the vehicle; and what you should say to others to deceive them regarding your activities. Your culpability relates entirely to your knowledge of what you were being asked to do, and your conduct in collecting and transporting such a large quantity of drugs secreted in your vehicle.
22What motivated you – a man who had no relevant prior history – to participate in this illegal activity appears to have been the lure of freely accessible drugs for your personal use. Whilst you had an expectation of this kind of reward for your conduct, I accept there is no evidence that you otherwise stood to profit financially from your involvement. What appears to be the motivation for your offending is reflected in a letter you wrote to the court dated 17 June 2022, where you state:
When certain people found out that I planned to travel, they asked me to participate in this offence to transport drugs interstate in exchange for the promise of an unspecified amount of drugs that I intended to keep for personal use. I knew that I was being used but at the time, I was not thinking clearly. I felt like I had something to gain and nothing to lose. I have since realised that this was the single most stupid decision I have ever made in my entire life.
23Even accepting the limits of your role, by agreeing to transport the drugs it is important to acknowledge that you were willing to play a critical role in this drug-related undertaking. Without people such as you being prepared to take on this role, with all its attendant risks, others involved in illegal drug activity could not operate as they do. Such operations involving the distribution and trafficking of illicit, addictive drugs have a devastating impact on the lives of individuals, families and communities. The need to deter others participating in any aspect of such serious criminal activity, and to protect the community from its inherently destructive consequences, are paramount sentencing considerations.
Personal circumstances
24Having discussed the objective gravity of the offending, I turn now to discuss your personal circumstances and history, which also inform my assessment of your moral culpability.
Personal background
25
Your personal background is set out in the psychiatric report of Dr Pandurangi, forensic psychiatrist, dated 18 July 2022,[8] and in the helpful written and
oral submissions of Mr Morrissey.
[8]Exhibit 1 – Psychiatric Report of Dr Pandurangi dated 18 July 2022
26Your parents were born in Lebanon where your two older brothers were born. In 1987 the family migrated to Australia where you and your older sister were born. You experienced a difficult childhood. Your father was a violent man, directing his verbal and physical abuse at both your mother and the children. You describe witnessing your father chase your brother with an axe, and being physically abusive to all of you as children. In turn, you say your eldest brother abused you as a child. You report feeling 'abandoned' by both parents throughout your childhood.
27Although you completed secondary school, your time in school was marred by instances of bullying, both from teachers and other students. You did not participate in any sporting activities but performed reasonably academically. You were suspended from school at times for behavioural issues, including fighting.
28After completing school you enrolled in an information technology course at university, but left after half a semester, saying you felt 'incapable and worthless' at the time. [9] You obtained no further academic qualifications. You did, however, secure various jobs before working in the insurance industry, eventually holding a role with iCare as a Case Management Specialist for eight months in 2019. However, following an incident of bullying at work, you made a stress-related WorkCover claim, and were in receipt of weekly payments at the time of your arrest.
[9]Ibid, at [13]
29Now 31 years old, you have never had an intimate personal relationship. You have also experienced difficulties forming friendships and in your assessment with Dr Pandurangi said you believe you have to 'please' others in order to maintain friendships and that you 'feel worthless and would seek validation, and needed to prove your worth to others'.[10]
[10]Ibid, at [15]
30You first saw a psychiatrist in 2015 for longstanding anxiety. You were prescribed medication and referred to psychologist Ms Lucy Parisi, who you have seen sporadically for the past six years. In January 2020 you saw consultant psychiatrist Dr Rajneesh Singh as you were experiencing 'low confidence, low mood and suicidal thoughts'.[11] Dr Singh diagnosed you with a depressive disorder and symptoms of anxiety. You were prescribed various antidepressant medications at that time.
[11]Ibid, at [18]
31When asked by Dr Pandurangi to explain your offending, you said you ceased taking your antidepressant medications in January 2021. At that time you were living alone, your mental health deteriorated significantly and you began abusing drugs. You told Dr Pandurangi that you were using 2 grams of cocaine every few days, cannabis every night and ecstasy every few weeks. You were also abusing alcohol, consuming a bottle of vodka daily. It is in this context you agreed to carry the drugs on your trip to Melbourne at the request of your drug dealer, you explained:[12]
I felt if I said no… that he would stop giving me drugs… also felt intimidated… I thought I should do it and be a ‘man’… was the dumbest decision of my life… just didn't care or think of the consequences at the time.
[12]Ibid, at [28]
Mental health
32
After detailing your personal history and your past psychiatric and psychological treatment, Dr Pandurangi assessed you with a moderate personality disorder 'with prominent negative affectivity traits and a borderline pattern', impacting on your daily functioning at a 'severe' level.[13] In reaching this diagnosis,
Dr Pandurangi states your formative years were characterised by disadvantage and neglect, coupled with ostracism and abuse at school, leading to a personality characterised by poor self-esteem, emotional dysregulation and impulsive decision-making.[14] Dr Pandurangi also assessed you as suffering from complex post-traumatic stress disorder ('CPTSD'), which overlaps with your personality dysfunction, and underlying symptoms of depression and anxiety.
[13]Ibid, at [27], [39]-[40]
[14]Ibid, at [39]
33Additionally, Dr Pandurangi opines that you suffer from a substance abuse disorder, with the regular use of illicit drugs being used to 'mediate your underlying distress and symptoms of mood disorder'.
34Clinical Psychologist, Mr John Machlin, who assessed you on 5 July 2022, also diagnosed you with a 'major depressive disorder', a 'substance abuse disorder' and a 'borderline personality disorder'.
35
Dr Pandurangi's conclusions are consistent with the findings of
Senior Clinical Psychologist Ms Emily Delves who assessed you in custody at the
Metropolitan Remand Centre on 2 June 2022. Ms Deves opined that:
…Mr Assaad presents with symptoms that meet the diagnostic criteria for borderline personality disorder (BPD) with strong dependent and avoidant personality traits. It is hypothesised that his auditory and visual hallucinations, whilst appearing psychotic in nature, relate more to his personality functioning and experience of trauma as opposed to being indicative of a primary psychotic illness. He also presents with significant features of depression, generalised anxiety, and post-traumatic stress disorder (PTSD). When considering differential diagnoses, Mr Assaad's presentation could also be explained by a diagnosis of complex post-traumatic stress disorder (cPTSD), which shares many features of BPD.
36I return to the relevance of your diagnosed personality disorder, and its relationship with your offending, later in my reasons.
Matters in mitigation
37On your behalf Mr Morrissey highlighted a number of matters that are relevant in mitigation of your sentence.
38First and foremost, you pleaded guilty to these charges at an early opportunity. In doing so you saved the court and the community the cost and time associated with a trial and acknowledged responsibility for this offending. Your plea facilitates the administration of justice. Additionally, at a time when there is a backlog of trials in the wake of the COVID-19 pandemic, your plea has heightened utility. You are entitled to 'an actual and palpable amelioration of your sentence' in these circumstances.[15]
[15]R v Worboyes [2021] VSCA 169 at [35]
39Through your plea of guilty you also express remorse for your offending. Additionally, you have repeatedly expressed shame and regret for your conduct, not only during your assessment with Dr Pandurangi in July this year, but also in your discussions with family and friends,[16] and in your letter to the court.[17] You also discussed your offending with clinical psychologist, Mr Machlin, who says you spoke with 'contrition and guilt' and that you acknowledged the impact of drugs on the community.[18] I accept that you are genuinely remorseful for your offending.
[16]Exhibit 8 – Bundle of character references
[17]Exhibit 7 – Letter of Apology dated 17 June 2022
[18]Exhibit 3 – Psychological Report of Mr John Machlin dated 12 July 2022, at page 4.
40Secondly, your prior criminal history is limited to a single traffic violation, close to ten years ago, that has no relevance to my sentence for this offending. Despite facing a number of challenges in your life, including exposure to physical and emotional trauma in your early years, you have otherwise been a person of good character. Those who know you well, both family and friends, uniformly describe you as kind, gentle and hardworking. Your sister, Assia Assaad, describes you as 'someone you could depend on', a person who is family-oriented and upon whom your elderly parents rely.[19] Your mother and brother also say you are a quiet, kind and sensitive person. Your mother says she knows your childhood was difficult, but says you have always been there for her when she needed you.
[19]Exhibit 8 – reference of Assia Assaad, sister dated 11 August 2022
41These sentiments are echoed in the references provided by a number of your long-term friends. Ms Deanna Simon, who has known you for seven years, describes you as loyal, kind and family-oriented. Ms Michelle Momand, who has known you 13 years, speaks of your compassionate nature. Others speak of your strong work ethic. Although family and many of your friends were aware of your past mental health difficulties, all express their shock at your involvement in this offending.
42You are entitled to the benefit of your previous good character in mitigation of sentence.
43Thirdly, Mr Morrissey submits that your mental health condition at the time of your offending engages the principles set out in the authority of Verdins, including by reducing your moral culpability for this offending and the need for the sentence to operate as a general deterrent. This aspect of your plea was challenged by the prosecution.
44The principles in Verdins are enlivened only where an offender suffers from an impairment of mental functioning, including by reason of a diagnosed personality disorder.[20] Whether there should be any moderation of general deterrence, and if so, its degree, will depend upon the nature and severity of the impairment of mental functioning. Further, for principles one to four to have application to the sentencing task, there must be 'some realistic connection' with the offending or to have 'caused or have contributed' to the offending.[21] The accused must establish that the mental impairment affected their ability to appreciate the wrongfulness of their conduct, or otherwise to have impaired their ability to make calm or rational choices or to think clearly at the time of the offence.[22] The authorities make it clear that any consideration of the principles in Verdins must be undertaken with rigour.[23]
[20]Brown v The Queen (2020) 62 VR 491
[21]DPP v O'Neill [2015] VSCA 325 at 25, [74]
[22]Ibid at 26, [75]
[23]Ibid, at 26 [78]
45
Dr Pandurangi diagnosed you with multiple underlying conditions that impair your mental functioning, including the diagnosis of a moderate personality disorder which he states 'severely' impacts on your daily functioning and which overlaps with your symptoms of complex PTSD. In addition, you have been diagnosed with a depressive disorder and substance abuse disorder. Dr Pandurangi concludes that your personality disorder is enduring in nature and has led to 'a serious impairment of [your] psychosocial functioning'. As stated,
Dr Pandurangi's conclusions broadly align with those of psychologists Mr Machlin and Ms Delves.
46Dr Pandurangi concludes that your decision to 'acquiesce or agree to carry the drugs' can be explained by impulsive decision-making, a susceptibility to being influenced by others and a lack of consequential thinking, all of which he states are characteristics of your underlying personality dysfunction.[24] Dr Pandurangi concluded:[25]
Although he would have been aware that his conduct, of carrying the drugs, would be considered legally wrong, his state of mind at the time and his underlying personality disorder would have contributed to his inability to make reasoned decisions.
[24]Exhibit 1, page 15 [44]
[25]Ibid, [44]
47In a similar vein Mr Machlin concludes that your severe depressive illness contributed to a perception on your part of having 'nothing to lose' and that your personality disorder 'quite possibly' contributed to your susceptibility to persuasion by others when you agreed to commit the offence.[26]
[26]Exhibit 3, page 7
48
Dr Pandurangi gave evidence at your plea hearing. He explained that your personality and other mental disorders did not cause you to offend, but, rather, contributed to your offending to a 'significant degree' because of your impulsive decision-making and flawed judgment. He says the effects of your personality disorder would have endured following your initial agreement to carry the drugs, despite the opportunity to reconsider and resile from this decision.
Dr Pandurangi agrees that your drug and alcohol abuse were also contributing factors in your offending, but states that your substance abuse disorder is also likely to have developed from your personality and other disorders.
49Having regard to Dr Pandurangi's expert evidence, I am satisfied that your diagnosed personality disorder, combined with your complex PTSD and depressive disorder, combined to impair your ability to engage in clear reasoning and contributed to a susceptibility on your part to the influence of others. However, whilst these disorders significantly contributed, and are therefore linked to your decision to engage in this offending, they did not operate in isolation.
50Undoubtedly, your willingness to engage in this offending must also be viewed in the context of heavy drug and alcohol abuse after you inexplicably ceased taking antidepressants. You were motivated to engage in the offending to receive an ongoing supply of drugs. Further, as Dr Pandurangi stated, your impaired mental functioning did not erase your understanding of the wrongfulness of your conduct. I consider that your impaired mental functioning operates to reduce your moral culpability and the need for the sentence to operate as a general deterrent in the application of principles 1 and 3 of Verdins, but only to a modest extent.
51I also consider the need for the sentence to deter you specifically is less significant, particularly as you have no relevant prior criminal history and have repeatedly expressed genuine shame and remorse for your conduct. The impact of imprisonment, particularly for you as a first-time offender, will also have a salutary effect. That this is likely to be the case is reflected in your June 2022 letter to the court in which you state:
I have been in custody for over a year now and I have had a lot of time to reflect on my actions and their consequences. My time in custody has completely opened my eyes to the true effects of drugs on our community. I have been surrounded by many different people in prison who have destroyed their lives by abusing drugs… I completely regret everything and I truly wish I could take it all back.
52I accept that your experience of having to serve a substantial sentence of imprisonment will be onerous for a number of reasons. Dr Pandurangi states that the severity of your personality disorder, complex PTSD and depressive disorder means that imprisonment will weigh more heavily on you than it would with those without your mental health disorders. Mr Machlin states that the prison environment has perpetuated your anxiety and trauma. On the basis of the expert opinions, I am satisfied limb 5 of the principles in Verdins applies to moderate your punishment.
53However, there is insufficient evidence for me to conclude there is a serious risk that imprisonment will have a significant adverse effect on your mental health under limb six. You are in receipt of psychological treatment in custody, albeit one interrupted at times due to the pandemic.
54Fourthly, your immediate family, the most significant source of support for you, all reside in New South Wales. This fact, coupled with frequent lockdowns and the restrictions imposed on face-to-face visits to respond to the pandemic, means that your experience of custody will be far more difficult and isolating. As a person with pre-existing mental health issues experiencing prison for the first time, this is a significant matter. I note that, to date, you have spent most of your time in custody in a mental health unit. Forensic psychologist Ms Delves confirms that your adjustment to life in prison has been very difficult and protracted[27] and that you have been placed in observational cells on at least three occasions.
[27]Exhibit 2, Personality Assessment Report of Ms Emily Delves, Senior Clinical Psychologist dated 2 June 2022, at page 3
55I have moderated your sentence taking into account the additional burden of your imprisonment for all of those reasons.
Prospects of Rehabilitation
56I turn now to assess your prospects of rehabilitation. A number of factors have bearing on my assessment of your future prospects, including your age and lack of any prior history of criminal offending, your plea and indications of remorse, particularly viewed in the context of your prior good character and work history. However, there is also the fact that you engaged, as a first time offender, in extremely serious criminal conduct that you knew to be wrong.
57Dr Pandurangi states that you have 'reasonable' prospects of rehabilitation provided you continue to receive mental health supports, both psychiatric and psychological, in addition to drug and alcohol counselling. He currently assesses you are a low-medium risk of generalised offending into the future, a risk he says can be reduced with effective treatment of your mental health conditions.
58You have been assessed by Mr Machlin as having a 'positive attitude' to ongoing mental health treatment and to participating in ongoing drug and alcohol counselling.[28] Your family and friends have all expressed strong support for you and a willingness to assist you in your future rehabilitation efforts upon your release. Given these matters, I assess your future prospects of rehabilitation are good provided, as I anticipate, you continue to engage in counselling and treatment to manage your mental health and to prevent any relapse into drug or alcohol abuse.
[28]Exhibit 3, at page 5
Other sentencing considerations
59Given the nature and seriousness of your offending, the sentencing principles of general deterrence, denunciation and community protection are the paramount sentencing considerations, even allowing for the moderating effect of the application of Verdins to your case.[29]
[29]Dawid v DPP [2013] VSCA 64
60In sentencing you for this offending, I must send an unequivocal message to individuals who contemplate engaging in any aspect of the trade in trafficking drugs, that they do so in the knowledge that, if detected, they will be sentenced to lengthy periods of imprisonment.[30]
[30]Ibid, at [35]
61I accept, however, that the need for the sentence to provide community protection is mitigated by the absence of any relevant prior criminal history and my finding regarding your good prospects of rehabilitation.
Standard Sentence offence
62
The offence of trafficking in a large commercial quantity ('LCQ') of a drug of dependence is a standard sentence offence; the standard sentence for which is
16 years' imprisonment. Section 5A of the Sentencing Act 1991 clarifies that the standard sentence is the sentence for an offence that is in the middle of the range of seriousness, taking into account only objective factors affecting the relative seriousness of that offence. For the sake of clarity, I confirm that the standard sentence applies to Charge 1 only and not to Charges 2 and 3.
63
Whilst the court is obliged to take the standard sentence into account as one of the factors relevant to sentence,[31] as the Court of Appeal made clear in
Brown v The Queen,[32] the standard sentence is to be treated as a 'legislative guidepost' no more, similar to the function served by the maximum penalty. It does not affect the established 'instinctive synthesis' approach to sentencing and does not require or permit a 'two stage' approach to sentencing. Nor does the standard sentence affect other matters the court must take into account in sentencing, including matters in mitigation. However, the court must explain how the sentence imposed relates to the standard sentence.
[31]Section 5B(2)(a) of the Sentencing Act 1991
[32]Brown v The Queen (2019) 59 VR 462; [2019] VSCA 286
Current Sentencing Practices
64I turn now to current sentencing practices. In respect of Charge 1, being the standard sentence offence, I am only permitted to consider previous sentences where the relevant offence was subject to the standard sentence scheme.[33]
[33]Section 5B(2)(b) of the Sentencing Act 1991
65
The prosecution submissions referred me to the case of Dimovksi[34] as being broadly comparable to the facts here. There the accused was sentenced, on appeal, to 11 years' imprisonment, with a non-parole period of seven years, for transporting 25.4 kilograms of methylamphetamine with a purity ranging from
84 to 86 per cent from New South Wales to Victoria. When he was intercepted by police in the car, the drugs located were in 24 packages secreted in a steel cavity within the rear seats of the vehicle. The accused had a minor prior criminal history, reasonable prospects of rehabilitation, strong references and family support. His depression made his time on remand more onerous, but otherwise the principles in Verdins were not available in mitigation. In Dimovski, the Court of Appeal found the accused's motivation for his role was the financial reward he anticipated as part of a 'commercial endeavour'.
[34]Dimovski v The Queen [2022] VSCA 6
66I have also had regard to the decision of the Court of Appeal in Quah,[35] where the offender was sentenced to 15 years' imprisonment for trafficking by possession of an amount 3.8 times the threshold for a large commercial quantity of methylamphetamine. I note that in Quah, however, the trafficking was characterised as being part of a 'continuing commercial enterprise' on the part of the accused, having regard to the quantity of drugs possessed, coupled with the location of a number of weapons, large sums of cash, scales and deal bags located at his property. The offending was found to have been motivated by greed. In that case there was no basis for moderating the offender's moral culpability.
[35]Quah v The Queen [2021] VSCA 164
67On your behalf, defence counsel also referred me to two decisions of this court: Yuksek[36] and Natale[37]. The circumstances of your offending are more closely aligned with those in Yuksek where the criminality related to the offender's role in storing a large commercial quantity of a mixture of MDMA and methylamphetamine at his property. Upon execution of a search warrant, the police located 169.9 kilograms of a mixture containing MDMA and 24 kilograms of a mixture containing methylamphetamine. In undertaking this role, the offender was found to have facilitated the operations of a drug trafficking syndicate by providing a safehouse or storage facility for the drugs. He had no other role in the manufacture, preparation or sale of the drugs and had no prior criminal history.
[36]DPP v Yuksek [2022] VCC 683 (Judge Gamble)
[37]DPP v Natale [2022] VCC 1199 (Judge Gamble)
68In sentencing the offender to 12 years' imprisonment, with a non-parole period of seven years, the sentencing judge took into account a number of relevant factors in mitigation in addition to his early plea, including the application of Verdins in reducing the offender's moral culpability, the exceptional hardship caused by his incarceration due to the significant disability of his two sons, inordinate delay, and his (guardedly) good prospects of rehabilitation. The decision of Natale, which related to the co-offender who directed the criminal activities of the drug syndicate, was sentenced to 16 years, six months' imprisonment, but that decision is of less relevance to your sentence.
69Ultimately, every case must turn on its own facts and circumstances. However, I have had regard to the cases to which I was referred insofar as they are instructive.
Submissions on sentence
70
On your behalf, Mr Morrissey acknowledged that the nature and gravity of your offending warrants a lengthy period of imprisonment, but urged the court to impose a 'clement' sentence having regard to your role, and your 'sympathetic and hopeful personal attributes'. He further highlighted the need for the sentence to reflect the overall criminality of your offending, and that in applying the sentencing principle of totality, the court ought to have regard to the fact that all three offences arose from 'a single indistinguishable course of conduct'.
Mr Morrissey submitted that in fixing a suitable non-parole period I should have regard to the absence of any relevant priors and your favourable prospects of rehabilitation.
71Ms Coombes, appearing on behalf of the prosecution, submitted your offending was inherently serious and emphasised the importance of the sentence operating to deter others, particularly having regard to the significant quantity of methylamphetamine found in your possession for a trafficking purpose. The prosecution submissions highlighted the observations of the Court of Appeal in Gregory[38] that sentences for trafficking in a large commercial quantity need to increase substantially in order to maintain appropriate relativities between the various quantity-based trafficking offences. In this regard, the prosecution emphasised the sheer quantity of the drugs in your possession, being 33 times the threshold for a large commercial quantity of methylamphetamine. As to Charges 2 and 3, the prosecution accept that the principle of totality has application in the circumstances of your case.
[38]Gregory (a pseudonym) v The Queen [2017] VSCA 151 ('Gregory')
Consideration
72I accept the prosecution submission that the quantity of methylamphetamine in your possession makes this a very serious offence indeed. In the case of Quah,[39] the Court of Appeal rejected a submission that the absence of evidence of any sale or distribution of the drug somehow made the offence less serious. There the court observed that the potential harm of a drug held in possession for sale is viewed as seriously as the actual harm cause by distribution.[40] In other words, trafficking by possession is no less serious an offence than trafficking by sale. I have had regard to the important statements of principles that may be distilled from the authorities of Gregory[41] and Rahmani[42] regarding the inherent seriousness with which the offence of trafficking in a large commercial quantity of drugs must be viewed and the significance of general deterrence and denunciation in the sentencing exercise.
[39]Quah v The Queen [2021] VSCA 164 ('Quah')
[40]Ibid at 15 [44]
[41]Gregory, Ibid
[42]Rahmani v The Queen [2021] VSCA 51
73Balanced against this, however, is the combination of powerful mitigating factors that exist in your case which compel a significant moderation in the sentence to be imposed. In taking these matters into account, I have imposed a sentence that falls below the standard sentence. In so deciding I have given significant mitigating weight to the heightened utility of your plea at this time, your prior good character and lack of relevant priors, your remorse, your personality disorder and the application of Verdins principles in reducing your moral culpability, the additional burden associated with your imprisonment, and my positive assessment of your prospects of rehabilitation.
Sentence
74Balancing each of the matters to which I have referred, whilst guided by the maximum penalties for each offence and the standard sentence applicable to Charge 1, I now sentence you as follows:
75
On Charge 1 – trafficking in a drug of dependence – being a large commercial
quantity – you are convicted and sentenced to a term of 10 years, six months' imprisonment.
76On Charge 2 – trafficking in a drug of dependence – namely MAPA being an analogue of P2P – you are convicted and sentenced to two years' imprisonment.
77On Charge 3 – trafficking in a drug of dependence – namely heroin – you are convicted and sentenced to two years' imprisonment.
78Having regard to the fact that the offending giving rise to Charges 2 and 3 relates to a single course of conduct giving rise to Charge 1, offending which occurred on the one day, I order that the sentences be served concurrently to give effect to the sentencing principle of totality. To be clear, that gives a total effective sentence of 10 years, six months' imprisonment.
79
Pursuant to s89DI(1) of the Sentencing Act 1991, upon conviction for
Charge 1 – trafficking in a large commercial quantity of a drug of dependence (that offence being 'a serious drug offence') I declare that you are a 'serious drug offender'.
80In fixing a non-parole period I have had regard to s11A(4) of the Sentencing Act 1991. In light of your age, your previous good character, the burden of your imprisonment and my assessment of your prospects of rehabilitation, I fix a period of six years, four months' imprisonment to be served before you are eligible for parole.
81Pursuant to s18 of the Sentencing Act 1991, I declare 471 days already served by way of pre-sentence detention, to be reckoned as served under this sentence.
82I declare, pursuant to s6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to 14 years' imprisonment, with a non-parole period of 11 years, six months' imprisonment.
83Finally, I make the forfeiture and disposal orders sought by the prosecution, noting that they are not opposed.
84Do either counsel require any clarification of the sentence I have imposed?
85MR GIANG-NGUYEN: No, thank you, Your Honour.
86HER HONOUR: Ms Mellios, will you make separate arrangements to speak with your client? Sorry. I apologise. Mr Nguyen?
87MR GIANG-NGUYEN: Yes, Your Honour, I will arrange to call the prison and I will speak with him there.
88HER HONOUR: All right. Thank you. We will now adjourn the court. Thank you.
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