Director of Public Prosecutions v Best
[2021] VCC 1730
•22 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01736
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYSON BEST |
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JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2021 | |
DATE OF SENTENCE: | 22 October 2021 | |
CASE MAY BE CITED AS: | DPP v Best | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1730 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Plea of guilty – one charge of trafficking in a large commercial quantity of 1,4-Butanediol – one charge of commit an indictable offence whilst on bail – offence of trafficking covers acts of trafficking and attempted trafficking – quantity a highly relevant consideration - lowest end of scale for large commercial quantity - single instance of offending – unsophisticated offending -COVID-19 pandemic - totality
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 s 71; Bail Act 1977 s 30B; Confiscation Act 1997; Sentencing Act 1991 ss 3(1), 6AAA, 89DI.
Cases Cited:Rahmani v The Queen [2021] VSCA 51; DPP v Quah [2019] VCC 1158; Mokbel v The Queen (2011) 211 A Crim R 37; R v Spaull [1999] VSCA 18; R v Mihalo (2002) 136 A Crim R 588; Gregory v The Queen (2017) 268 A Crim R 1; Dawid v Director of Public Prosecutions (Vic) [2013] VSCA 64; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Henderson [2021] VCC 1398; DPP v Fatho & Ors [2019] VCC 1260; Arici v The Queen [2019] VSCA 228; Al-Dimachki v The Queen [2021] VSCA 98
Sentence: Imprisonment for a period of 4 years and 6 months with a non-parole period of 2 years and 6 months.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Cara Foot | Office of Public Prosecutions |
| For the Offender | Ms Zarah Garde-Wilson | Garde Wilson Lawyers |
HER HONOUR:
Introduction
1Jayson Best, you have pleaded guilty to one charge of trafficking in a drug of dependence – large commercial quantity contrary to s71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (DPCSA). You attempted to traffick in a drug of dependence, namely 1,4-butanediol (1,4-BD), in a quantity that was not less than the large commercial quantity applicable to that drug of dependence. The maximum penalty for attempting to traffick a large commercial quantity of a drug of dependence is life imprisonment.
2You have also pleaded guilty to the related summary offence of commit an indictable offence whilst on bail, contrary to s30B of the Bail Act 1977. The maximum penalty for this offence is three months’ imprisonment or 30 penalty units.
3You accept the prosecution plea opening dated 29 September 2021.
Circumstances of the offending
4I will summarise briefly the circumstances of your offending. On 17 September 2020, police attended your address in Brooklyn, where they executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act. During the search, police seized a Samsung mobile phone. You identified the phone as yours. The police requested the passcode to your phone, which you provided.
5The mobile phone was analysed by police. They located a conversation thread on the messaging service WhatsApp which showed you discussing the purchase of 1,4-butanediol with an unknown person. The conversation thread included photographs of the purported 1,4-butanediol and consignee details matching your personal details. There was also a photograph of a barcode with a reference number.
6Police placed a cargo stopper alert on you to monitor all of your incoming consignments.
7On 22 October 2020, the Australian Border Force (ABF) notified police that a consignment for you had arrived in Sydney. The consignee details matched your personal details.
8The freight label on the package had the same reference barcode as seen in the picture located on your mobile phone. The bottles looked like the bottles in the photographs on the phone.
9The package was seized and analysed. It was found to contain two boxes. Each box contained 23 bottles. Each bottle contained 500ml of liquid. The package contained 46 bottles with a combined total volume of 23 litres. The liquid in the bottles was forensically analysed and found to be 1,4-butanediol. The threshold for a large commercial quantity is 20 litres.
Interview
10You declined to be interviewed in relation to the matter.
Offending whilst on bail
11On 18 May 2020 you were granted bail in the Melbourne Magistrates' Court on charges relating to the possession of material for the purpose of manufacturing a drug of dependence, theft of a car and other offences. Your offending in this matter was committed whilst you were on bail.
Plea of guilty
12You pleaded guilty at the earliest opportunity, at the committal mention on 13 August 2021. I accept that by your plea of guilty you have saved the community the time and expense of a trial and shown willingness to facilitate the course of justice.
13I have had regard to the Court of Appeal’s comments that a plea of guilty entered during the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not impacted by the pandemic.
14There is little evidence of genuine remorse. You declined to be interviewed. I have, however taken into account that you provided the police with your passcode to your phone which unlocked the evidence of your offending as indicative of cooperation and some remorse.
Pre-sentence detention
15You have no days of pre-sentence detention in relation to this matter.
Prior convictions
16You have a prior and relevant criminal history which dates back to 2007 and relates to intentionally cause serious injury, recklessly cause injury, driving in a dangerous manner and possess prohibited weapons. You committed the two drug-related offences: possession of methylamphetamine in 2018 and trafficking in a drug of dependence in 2015. On both occasions, the court imposed a community correction order, both of which you contravened.
17You were charged with a number of drug-related offences on 17 September 2020, to which I have previously referred. These charges were heard in the Magistrates' Court. You were convicted and sentenced to a combination sentence of 10 months' imprisonment followed by a 12 month community correction order.
Personal circumstances
18Your personal circumstances are set out in written and oral submissions, and in the psychological report of Mr Matthew Staios, clinical neuropsychologist.
19You are 31 years old. You were born and raised in Warrnambool. Your parents separated when you were an infant. Following the separation, you were raised by your mother, and you had minimal contact with your father. Your relationship with your mother was strained throughout childhood and adolescence.
20You moved out of the family home at 14 years of age due to your strained relationship with your mother. You lived with a number of your friends and their families for several years until moving into your own home. You returned to your family home on occasion, but could not live with your mother for extended periods due to your tumultuous relationship.
21You reconnected with your father at the age of 19, living with him for a period of approximately one year before parting ways.
22You left school before completing Year 9 as a result of ongoing disruptive and problematic behaviour. You commenced a building apprenticeship. In 2006, a few years into your apprenticeship, you suffered a workplace injury. You reported suffering from chronic back pain and after being placed on WorkCover for a few months, you returned to light duties but were dismissed a short time later. You then completed a plastering apprenticeship for four years. After working in the industry, you established your own business, which you have operated for the past five to seven years. You also undertake gardening maintenance.
23You have been in a relationship with your partner, Ashley, for eight years, living together for a period of seven years. Your partner continues to provide you with both practical and emotional support, and has kept in contact with your whilst in custody.
24You and your partner suffered significant financial hardship before and following the COVID-19 pandemic. Your business was impacted by several lockdowns and you lost a number of contracts. This caused you significant stress and you used substances as a means of coping.
25You have a history of binge drinking dating back to early adolescence. You commenced using methamphetamine in 2015. You managed to remain drug free for eight months in 2020, but relapsed due to a lack of work caused by the COVID-19 pandemic. Prior to being remanded in custody, you are reported to have used significant amounts of methamphetamine on a daily basis.
Objective gravity of the offences
26The offence of trafficking a large commercial quantity of a drug of dependence is 'an offence of the utmost seriousness'.[1] It is the most serious drug trafficking offence under Victorian law.[2] The seriousness of the offence is reflected by its maximum penalty of life imprisonment. Drugs of addiction are, as counsel for the prosecution put it, a 'scourge on our community'.
[1] Rahmani v The Queen [2021] VSCA 51, [23].
[2] Ibid [30].
27An offence against s71(1) of the Drugs, Poisons and Controlled Substances Act is a 'serious drug offence' for the purpose of the Confiscation Act 1997. Section 89DI of the Sentencing Act 1991 states that when a person is convicted of a 'serious drug offence', the court must make an order declaring that person to be a 'serious drug offender'. The offence is a Category 1 offence under s3(1) of the Sentencing Act, which means that the court must impose a custodial sentence for that offence. These provisions also highlight the seriousness of the offence.
28The offence of trafficking covers both the doing of an act which comes within the definition of traffick and an attempt to do such an act.[3] The same maximum penalty applies to both acts. In Mokbel, the Court of Appeal held that even though one of the charges involved only an attempt to traffick in a large quantity of a drug of dependence, it did not reduce the gravity of the offence.[4] This does not mean that the same sentence should always be imposed for an attempt to traffick as for a completed trafficking offence, but it does reflect the fact that the offence is intended to deal with the potential harm caused by trafficking or attempting to traffick illicit drugs.[5]
[3] Mokbel v The Queen (2011) 211 A Crim R 37, 47 [43].
[4] Mokbel, 47 [43].
[5] Ibid.
29The legislative scheme differentiates between trafficking and attempt to traffick in one respect: the standard sentence for this offence applies only in respect of trafficking.[6]
[6] Drugs, Poisons and Controlled Substances Act 1981 s 71(2).
30The sentencing regime for trafficking offences is quantity-based.[7] Quantity is a highly relevant consideration in sentencing for trafficking offences, along with the offender’s role in the trafficking, the duration of the offending and the motivation of the offender’s involvement.[8]
[7] Gregory v The Queen (2017) 268 A Crim R 1, 7 [23].
[8] Ibid [23].
Gravity of the Offending
31Ms Garde-Wilson submitted that your offending is at the lowest end of the scale for this offence. The quantity you imported is at the very lowest end of the scale. Your offending relates to the single act of purchasing the product online. Your offending was not sophisticated, as demonstrated by the fact that you made the purchase using your own name and address. The substance can be easily bought online and legally imported if a person has a legitimate purpose for doing so. There is no evidence of the sale value.
32You gave the police the passcode to your mobile phone voluntarily. Without your passcode, it is unlikely authorities would have had any evidence to pursue the current charge.
33Ms Foot accepted that your offending is at the lowest end of the scale for this offence. It was not sophisticated and you were co-operative with police. I accept the submissions made in this regard and have moderated your sentence accordingly.
Moral culpability
34I consider your moral culpability to be high. You placed the order for the large commercial quantity of 1,4-butanediol. You were the organiser and instigator of the shipment.
35You have been convicted and sentenced in respect of a number of drug-related offences in the past. You engaged in this offending whilst on bail. You have been charged with the separate offence of committing an indictable offence on bail and so when considering an appropriate sentence, I have not aggravated the offence of attempted trafficking to avoid double punishment.
36Mr Staios diagnosed you as suffering from Stimulant Use Disorder (in early remission, in a controlled environment). You reported suffering from stress and emotional instability and adopted avoidant coping mechanisms, often turning to substances as a means of escapism.
37Your current level of cognitive function is said to be in the borderline and low average range. You have a limited capacity for abstract reasoning, problem solving and language-based skills. Mr Staios considered that a combination of vulnerabilities leaves you susceptible to poor decision-making, including offending and substance use. Ms Garde-Wilson accepted, however, that the principles in Verdins are not enlivened. Your current offending was exacerbated by financial stresses due to COVID-19. These issues resulted in a decline in your mental state, leading to substance abuse as a means of coping and escapism.
38Whilst Mr Staios’ report provides some context for your offending, there is little evidence of genuine remorse or insight into your offending.
General deterrence
39The principles of general deterrence, just punishment and denunciation are significant sentencing considerations.[9] It is important that individuals who contemplate engaging in drug trafficking do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment.[10] The sentences imposed for drug trafficking must be sufficiently severe to offset the lure of large and relatively easy profits that can be derived from the trafficking of illicit drugs.[11]
[9] Dawid v Director of Public Prosecutions (Vic) [2013] VSCA 64, [35].
[10] Ibid.
[11] Ibid.
Specific deterrence
40Specific deterrence is also a significant sentencing consideration in light of your prior criminal history. When you committed this offence, you were on bail for the possession of methamphetamine and the possession of materials used in the manufacture of drugs of dependence. You breached community correction orders in the past.
Prospects of rehabilitation
41Your counsel submitted that you have fair to good prospects of rehabilitation if you remain drug free. You have the support of your mother and your partner, trade skills and a solid employment history.
42She relied on the character reference of your former employer, Mr John Kelam, dated 3 February 2021 to which I have had regard. Mr Kelam has known you for six years. You were his employee from June 2019. He wrote that you made a positive contribution to his business, and that his clients were exceedingly happy with your performance, attention to detail and friendly attitude. He wrote that you are an honest and trustworthy individual, and that the charges against you are out of character.
43Your current relationship with your parents is unclear. In her written submissions, Ms Garde-Wilson asserted that you are on good terms with both of your parents. However, in his psychological report, Mr Staios wrote that 'you reported that you do not have any contact with either your parents'. On the plea, Ms Garde-Wilson conveyed your instructions that you are in contact with your mother, and that she continues to support you. She also submitted that you are in contact with your father, albeit you are not as close.
44Your partner continues to provide you with both practical and emotional support, and has kept in contact with you whilst in custody. Mr Staios noted a number of protective factors including stable accommodation, your relationship, recent abstinence from substances, your employment prospects and a willingness to engage in drug counselling and psychological intervention.
45Since being on remand, you have worked in Metal Works teaching others to weld. You have completed two certificates in Engineering and are enrolled in others. You have also completed the ‘Ice and Me’ course.
46Counsel for the prosecution submitted that your prospects of rehabilitation are guarded. You have a 'significant criminal history', with some relevant drug related offending. You were on bail, as I have said, for a range of offences, including drug-related offences, when you committed this offence. You also breached several community correction orders. Mr Staios noted that the issues he has identified are yet to be addressed by way of psychological intervention and/or drug and alcohol counselling.
47In light of your prior history including that you were on bail at the time of committing these offences, and in the absence of genuine expressions of insight and remorse, I consider your prospects of rehabilitation are guarded.
COVID-19 pandemic
48I have had regard to the difficulties you have faced while on remand due to the COVID-19 pandemic, including no contact visits with your family, frequent lockdowns, and a limited capacity to access courses and rehabilitation.
Totality
49Ms Garde-Wilson submitted that the sentence I impose for this offending ought to take the principle of totality into account. You do not have any pre-sentence detention in this matter. You were sentenced in the Magistrates’ Court on 5 July 2021 to a term of imprisonment of 10 months and a 12 month Community correction order. That term of imprisonment expires in November 2021. Ms Garde-Wilson submitted there is an obvious close connection and commonality between the dates of the commission of those offences and the nature of the offence of attempted trafficking.
50I have had regard to the principle of totality when considering the sentence to impose on you.
Current sentencing practices
51I am obliged to have regard to current sentencing practice in determining the sentence, though I note the guidance of the High Court in DPP v Dalgliesh (a pseudonym) that current sentencing practices are one of the many factors that must be taken into account in sentencing.[12]
[12] (2017) 262 CLR 428.
52I have had regard to the Sentencing Advisory Courts Sentencing Statistics for this offence. They reflect the seriousness of the offence. In cases where trafficking in a large commercial quantity of a drug of dependence was the principal offence, a term of imprisonment was imposed in 100 per cent of cases. The minimum length of imprisonment for cases of trafficking in a large commercial quantity of a drug of dependence was four years, while the maximum length of imprisonment was 22 years. The median length of imprisonment for cases involving this offence was eight years.
53According to the most recent Sentencing Snapshot for this offence, non-parole periods for this offence ranged from one year to 16 years. The median non-parole period was between five and six years.
54In assessing the objective gravity of your offending, your counsel submitted that I must take into account the recent changes to the legislative regime, namely the introduction of a large commercial quantity threshold for 1,4-butanediol in 2019. Prior to this date, there was no large commercial quantity threshold for this substance. The threshold for a commercial quantity of 1,4-butanediol is 2 kilograms. The prosecution submitted that the introduction of a large commercial quantity threshold in respect of this substance means that the quantity involved in this case, 23 litres, has shifted from being at the higher end of a commercial quantity to the lower end of a large commercial quantity.
55Ms Garde-Wilson submitted, and prosecution agreed, that, to the best of their knowledge, there are no Court of Appeal authorities or otherwise that relate to attempted trafficking of a large commercial quantity of 1,4-butanediol. However, your counsel referred me to several cases involving charges of trafficking in a commercial quantity to which I have had regard.[13]
[13] DPP v Henderson [2021] VCC 1398; DPP v Fatho & Ors [2019] VCC 1260; Arici v The Queen [2019]
VSCA 228; Al-Dimachki v The Queen [2021] VSCA 98.
56Each case, however, is different and the court must have regard to the individual circumstances of each case, which I have done.
Sentencing Submissions
57There was no issue between the parties that the only option is the imposition of a term of imprisonment. Mr Garde-Wilson submitted there ought be a long parole period.
58Ms Foot agreed a parole period would be the best opportunity for you to engage in treatment you have not engaged in in the past. This is the first time you are facing a significant term of imprisonment. I have taken these factors into account in setting the non-parole period.
Consideration
59I accept that your offending is at the lowest end of trafficking in a large commercial quantity. The threshold quantity is 20 litres. You were attempting to traffick 23 litres of the drug. There are many cases where much larger quantities of this drug were dealt with under the previous sentencing regime.
60It was a single transaction. Your offending was unsophisticated. You used your own phone to conduct the transaction and provided your own name and home address for delivery. As I have previously indicated, you gave your passcode to the police, which unlocked the evidence of your offending.
61Having carefully considered, balanced and weighed all of the matters referred to on your plea, the material relied upon in support and having regard to the relevant sentencing principles, I sentence you as follows:
Sentence
62On Charge 1, trafficking in a drug of dependence – large commercial quantity, I sentence you to a term of imprisonment of four years and five months.
63On the related summary offence of commit an indictable offence whilst on bail, I sentence you a term of imprisonment of three months.
64Charge 1 is the base sentence. I direct that one month of the sentence on the related summary offence be served cumulatively upon the sentence imposed in respect of Charge 1.
65The total effective sentence is a term of imprisonment of four years and six months.
66I direct that you are to serve two years and six months of your sentence before being eligible for parole.
67There are no days of pre-sentence detention to be reckoned as having been served.
Section 6AAA declaration
68Pursuant to s6AAA of the Sentencing Act I declare that had you pleaded not guilty to these charges and been found guilty of them I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
Other matters
69Pursuant to s 89DI of the Sentencing Act 1991, I declare you to be a 'serious drug offender'.
70I will also make the disposal order sought by the prosecution.
71Are there any matters to raise, Ms Foot or Ms Garde-Wilson?
72MS GARDE-WILSON: 6AAA, Your Honour?
73HER HONOUR: Yes, I did say the 6AAA. I said six years - - -
74MS GARDE-WILSON: Apologies, I missed that.
75HER HONOUR: That is all right. Six years, with a non-parole period of four years.
76MS GARDE-WILSON: Thank you, Your Honour. And can I just clarify whether any order needs to be made that that sentence runs concurrently with the sentence he is currently serving?
77MS FOOT: My understanding if no order is made then that is what occurs in any event.
78HER HONOUR: Certainly.
79MS FOOT: That's my understanding, but if to be safe Your Honour can make that declaration. I understand he's only got a few weeks left on that sentence.
80HER HONOUR: Yes, well I will make that declaration to ensure that it is clear that the term is to be served concurrently with the term currently being served in relation to the other matters.
81MS GARDE-WILSON: Thank you, Your Honour.
82MS FOOT: As Your Honour pleases.
83HER HONOUR: All right, please adjourn the court. Thank you for your assistance.
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