Director of Public Prosecutions v Blackburn
[2024] VCC 582
•2 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01501
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE RAYMOND BLACKBURN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2024 | |
DATE OF SENTENCE: | 2 May 2024 | |
CASE MAY BE CITED AS: | DPP v Blackburn | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 582 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – trafficking in a drug of dependence – trafficking in a drug of dependence commercial quantity – oxycodone – 1,4-Butanediol – cocaine – negligently dealing with the proceeds of crime – fail to provide information to police necessary to access data held in a storage device – prohibited person possess imitation firearm – remorse – limited criminal history – drug addiction – mental ill-health – complex post-traumatic stress disorder - major depressive disorder
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; Dieni v The Queen [2022] VSCA 16; Ellis v The Queen [2018] VSCA 221; DPP v Drake [2019] VSCA 293; Worboyes v The Queen [2021] VSCA 169; R v Lam & Ors (2005) 15 VR 574; Akoka v The Queen [2017] VSCA 214; DPP v Tirris [2022] VCC 1575; DPP v Goury-Hyde [2020] VCC 1460; DPP v Bugeja [2017] VCC 728; DPP v Muthia [2017] VCC 1549; Boulton v The Queen (2014) 46 VR 308
Sentence: Community correction order 3 years duration with 200 hours community work and fine of $300.00
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Sharp | Office of Public Prosecutions |
| For the Accused | Mr A Halphen | Pace and Associates |
HIS HONOUR:
1Luke Raymond Blackburn, you have pleaded guilty to the following charges:
(a) Charge 1 – that at Koornalla between 3 August 2022 and 27 October 2022, you trafficked in cocaine;
(b) Charge 2 – that between 7 October 2022 and 27 October 2022, you trafficked in a drug of dependence, namely Oxycodone;
(c) Charge 3 – that on 27 October 2022, you trafficked in 1,4-Butanediol in a quantity that was not less than the commercial quantity applicable to that drug of dependence;
(d) Charge 4 – on 27 October 2022, you dealt with $2,705 which was the proceeds of crime, being negligent as to whether it was the proceeds of crime.
2You also agreed to have me deal with the following summary charges to which you also pleaded guilty:
(a) Summary Charge 4 – that on 27 October 2022, you failed to provide without reasonable excuse, information to police that was reasonable and necessary to access data held in a storage device;
(b) Summary Charge 7 – that on 27 October 2022, being a non-prohibited person, you did possess an imitation firearm without an exemption.
Circumstances of offending
3The circumstances of your offending are set out in the summary of prosecution opening for plea dated 20 March 2024. The matters in that summary form the basis upon which you are to be sentenced.
4On 27 October 2022, police were travelling to your address on Traralgon Creek Road, Koornalla, to execute a search warrant.
5By coincidence, at about 3.40 pm that day, police intercepted you on Traralgon Creek Road while you were driving a white Holden Commodore utility.
6Police approached your car and saw that you were distressed. A large black bag on the passenger seat was observed. After confirming your identity, you were placed under arrest in relation to a prior matter.
7Police told you that they would search your car. You told them you had some painkillers for your mother in the car and that she did not have a prescription for them.
8Police then conducted a search of your car and found the following:
(a) six loose blister packs containing sixty 10 milligram OxyNorm Oxycodone tablets in the large black bag; and
(b) eight loose blister packs in the centre console containing ten 10 milligram OxyNorm Oxycodone tablets, eight 20 milligram OxyNorm Oxycodone capsules, and seventy-seven 20 milligram Oxycontin Oxycodone tablets.
9The drugs found in your car form the basis of Charge 2, trafficking in Oxycodone.
10Police then conveyed you to your home address. On the way to your house, you told police that you had a gel blaster at home.
11Upon arrival at your address, it was searched and the following items were found:
(a) Six bottles containing a frozen substance which, on later analysis, was found to be 1,4-Butanediol. This finding is relevant to Charge 3, trafficking in a commercial quantity of 1,4-Butanediol.
(b) A seal locked bag containing a white power substance later found to be cocaine. This finding is relevant to Charge 1, trafficking in cocaine.
(c) Two shoe boxes in the bedroom comprising:
(i)Two blister packs containing eight 10 milligram OxyNorm Oxycodone tablets.
(ii)17 blister packs containing 175 milligram Endone Oxycodone tablets.
(iii)75 blister packs containing 750 10 milligram OxyNorm Oxycodone tablets. Each of these items are also relevant to Charge 2.
(d) An imitation firearm, namely a gel blaster, with magazines, relevant to Summary Charge 7, possession of an imitation firearm.
(e) And $2,705 in Australian currency, relevant to Charge 4 on the indictment, negligently dealing with proceeds of crime.
12Your telephone was seized during the search, and you were then conveyed to the Morwell police station. Analysis of your telephone revealed that you engaged in the sale of cocaine via Threema, Facebook Messenger, and Snapchat between 3 August 2022 and 21 October 2022. Analysis also revealed that you engaged in the sale of Oxycodone via Snapchat between 7 and 27 October 2022.
13In total, 27.8 grams of cocaine at five per cent purity; 10.83 grams of Oxycodone (made up of 1,083 tablets and capsules); and 2.9465 kilograms of 1,4-Butanediol were located and seized.
14During police interview you answered 'no comment”' to their questions and you also refused to provide the personal identification number for your telephone. This refusal is relevant to Summary Charge 4 – failing to comply with a direction under s465 AAA Crimes Act.
Personal circumstances
15You were born in July 2000. You are now 23 years of age and were 22 years of age at the time of your offending.
16You grew up in Traralgon with your mother.
17You instructed your counsel that your mother was a heavy drug user. The drugs she used included heroin, ice, ecstasy, amphetamines and cannabis. You often witnessed her using drugs with various boyfriends in your home. You also reported a history of neglect which, at times, included no food in the house for days. You said you would resort to stealing food from a local store in order to eat.
18Your mother, you report, told you that your biological father did not want you in his life, and that he was a perpetrator of family violence. However, approximately six months ago, you were contacted by a half-sister of whose existence you were not aware and you have, since that contact, been reunited with your father and have met a number of half-siblings.
19Your father, who was present in court during your plea hearing, told you that your mother’s narrative was wrong and that he had tried, unsuccessfully, to obtain custody of you. You confronted your mother with what you had learned from your father and she apparently acknowledged the truth of what your father told you. You have since cut ties with your mother. Your father’s wife of 25 years was also present in court during your plea hearing. It was submitted that they are both respectable and productive members of the community in which they live.
20You left school at the age of 15 to work in a hardware store. You describe your school experience as 'terrible' due to you struggling academically and persistent bullying from peers.
21Since leaving school, in addition to the work in the hardware store, you have worked in general labouring jobs. In 2022, you obtained an apprenticeship as an electrician which you continue to this day. You are due to sit your final exams in the middle of this year and you anticipate being a fully qualified electrician by November. It is your hope to set up your own business as an electrician.
22A reference dated 12 April 2024 from Daniel Broadbent, a manager at O&M Pty Ltd, your employer, was tendered on your behalf. Mr Broadbent states he has known you for three years since he started working for the company. He states that you are 'well mannered, sincere and overall, a nice person to be around'. He also states that since October 2022, you have been subjected to four supervised random drug and alcohol tests, all of which were negative.
23You are in a relationship and have been living with your partner for approximately 15 months. She is employed as a law clerk.
24
You have only been in trouble with the police on one previous occasion. On
9 August 2019, you appeared at the Latrobe Valley Magistrates’ Court on a charge of recklessly causing serious injury. On that occasion you were fined, without conviction, the sum of $2,000. I was informed that you have no subsequent convictions or pending criminal matters. I do not consider that this prior conviction has much relevance to the current charges.
Psychological report
25
Tendered on your behalf was a psychological report of Amy Brandler, dated
12 April 2024.
26Ms Brandler assessed you on 4 April 2024. She noted that you acknowledged your offending behaviour and voiced your remorse for your 'old' antisocial lifestyle. According to Ms Brandler, you demonstrated insight into your use of substances as a coping mechanism for your unmanaged trauma symptoms and the ego boost you received from dealing in drugs and having people wanting to spend time with you. Ms Brandler is of the opinion that you articulated significant and genuine remorse for your behaviour.
27You told Ms Brandler about your background having been raised by your mother in an environment of drug abuse. You also reported having been sexually abused by a number of your mother’s boyfriends during your childhood. You struggled emotionally when disclosing to her that abuse.
28Regarding your own substance abuse, you started using cannabis from the age of 14 on a social basis. You also occasionally used other drugs such as cocaine and MDMA at parties from around the age of 16.
29You were first prescribed Oxycodone at the age of 15 when you broke your foot while motor-cross riding. Over the next few years, you suffered a number of injuries from motor-cross riding including broken ribs and a broken ankle. You were consistently prescribed Oxycodone and noted a growing dependence on that drug from about the age of 19. When you were 21 years old, you broke your shoulder and you were again prescribed Oxycodone following surgery. From that time you became addicted to Oxycodone using approximately four tablets each day until your arrest on the current charges. It was this addiction to Oxycodone, your counsel submitted, that brought you into an environment of other drug users and the temptation to offend.
30Since your arrest, you have completed approximately 30 sessions of counselling with Australian Community Support Organisation (ACSO) for your illicit substance use. You also attended the Hills and Ranges Private Drug and Alcohol Treatment Centre in December 2022, as part of your conditions of bail.
31You continue to experience chronic pain which you now manage through mindfulness strategies, attending a boxing gym, and taking frequent rest breaks.
32Ms Brandler also spoke to your father. He corroborated your history, particularly your having been taken from him by your mother when you were one week old. According to your father, your mother told him that she was going to visit family in Victoria and would return after a week. However, she never returned, and your father was unsuccessful in all his efforts to have you returned.
33Your father owns and manages a boxing gym in South Australia that assists young persons in rehabilitation and drug prevention. He is also active in the Alcoholics Anonymous community. Your father has discussed with you the impact of your offending, and it is his hope that you will be able to live with him in South Australia, where you will have a supportive family network.
34You reported to Ms Brandler that you became addicted to Oxycodone due to having no other pain management or emotion regulation strategies. You were emphatic that you had put your drug dealing behind you.
35In Ms Brandler’s opinion, there are two pertinent risk factors to you reoffending. First, you remain susceptible to impulsive behaviours. Second, is the risk of drug relapse, notwithstanding you have been abstinent from illicit substances and prescription medication for over 12 months. She recommends a period of maintenance with a psychologist experienced in addiction to reduce your risk of relapse.
36Following the administering of three psychometric tests, Ms Brandler states that you meet the criteria for complex post-traumatic stress disorder and major depressive disorder. She states that you presented as a traumatised individual who has experienced many hardships throughout your life, including sexual and emotional abuse. You appeared to have many symptoms of poor mental health, including suicidal ideation, low self-worth, avoidance, nightmares, hypervigilance and emotional dysregulation. You also have typical post-traumatic stress disorder symptoms of flashbacks, nightmares and internal and external avoidance. She considers that you were suffering both major depressive disorder and complex post-traumatic stress disorder at the time of your offending and will continue to present with symptoms of those disorders, until you are able to engage in appropriate psychological intervention.
37Ms Brandler states that you were reliant on the use of opioids to cope with your complex post-traumatic stress disorder symptoms and that you trafficked as a way to cope with your major depressive disorder symptoms. She considers your mental illness would have impaired your ability to exercise appropriate judgment, as well as make calm and rational choices regarding your use and trafficking of illicit substances. Furthermore, that your executive functioning has been impaired by your mental illness, as well as with your earlier attention deficit hyperactivity disorder diagnosis.
38Ms Brandler believes that a sentence would likely weigh more heavily on you than it would on a person with no clinical diagnosis. She is also concerned that your risk of suicide will increase should you be imprisoned. Therefore, she is of the view that a term of imprisonment would have a significant adverse effect on your symptoms of complex post-traumatic stress disorder and major depressive disorder, as well as decelerate any progress toward family reunification with your biological father and half-siblings.
39Tendered on your behalf was a letter dated 18 December 2023 from Melissa H, intake worker with ACSO. Ms H confirms that you voluntarily completed an intake on 16 December 2022. You thereafter attended 22 out of 25 scheduled appointments with ACSO. According to Ms H, you appear to have made a genuine commitment to addressing your drug use, engaging in a consistent manner in specialist Alcohol and Other Drug treatment over consecutive months. Ms H noted that a standard episode of Alcohol and Other Drug counselling is generally four to six sessions and a complex episode of Alcohol and Other Drug counselling is generally approximately 12 sessions. Ms H reports that you engaged to a high level in treatment and expressed considerable insight into the impact of your drug use on you and the lives of others. You appear to be committed, she said, to leading a pro-social lifestyle into the future.
40Also tendered on your behalf was a letter from Bridgett Kirchner, head facilitator and counsellor with Hills and Ranges Private. The letter is dated 6 January 2023, and is addressed to the presiding magistrate at the Latrobe Magistrates’ Court.
41
Ms Kirchner states that you entered their addiction treatment program on
15 December 2022, where you presented with symptoms of chronic addiction and anxiety. She states that you attended all program activities and participated with enthusiasm. She also states you made enormous strides to gain valuable insight into your addiction and behaviour, and that you expressed genuine remorse for your past actions.
42Ms Kirchner states that she found you to be motivated, sincere, honest, and willing to make positive changes in your life. I was informed that the program, which you successfully completed, ran for four weeks. This is confirmed by the discharge summary and letter from Sheree Dunkley, Exhibits D7 and D8.
Sentencing submissions
43Mr Halphen, who appeared on your behalf, submitted that the trafficking the subject of Charges 1 and 2, was unsophisticated, occurred at 'street level,' and that you did not take any real steps to avoid detection other than the use of social media. Mr Halphen pointed to the purity of the cocaine being only five per cent.
44
Mr Halphen submitted that Charge 3 is the most serious charge on the indictment but stated that your possession for sale of 2.94 kilograms of
1,4-Butanediol places it towards the lower end of the scale of a commercial quantity and is significantly less than a large commercial quantity. A commercial quantity is 2 kilograms and a large commercial quantity is 20 kilograms.
Mr Halphen further submitted that there was no evidence of any actual transactions regarding the trafficking of that substance.45With regard to Charge 4, Mr Halphen submitted that the $2,705 was a relatively modest amount of proceeds.
46Regarding the imitation firearm, he submitted that it was simply in your possession and that it is not alleged that you did anything with it. Your failure to provide police with your personal identification number so that they may access your phone, it was submitted, was a result of you becoming frightened when intercepted.
47Mr Halphen submitted that your motivation for the offending was more than just the prospect of financial reward. He referred to the opinion of Ms Brandler that your offending appeared primarily to be precipitated by a combination of using opioids to cope with your unmanaged mental health symptoms and a realisation that trafficking in prescription medication could provide you with feelings of power, influence, and improve your self-worth.
48Based on Ms Brandler’s opinions, it was submitted that Verdins[1] principles 1, 3, 5 and 6 were enlivened. Mr Halphen stated he was careful not to overstate any reduction in penalty arising from the operation of Verdins principles 1 and 3, accepting that the application of those principles did not require any significant moderation in penalty.
[1] R v Verdins (2007) 16 VR 269
49Mr Halphen also relied on Ms Brandler’s opinion that your offending appears to have been related to attachment trauma from your childhood. Your mother’s drug use and that of her antisocial partners also normalised the use of drugs as a coping mechanism. It was put by Mr Halphen that your background, which was marked by profound neglect and abuse in your early life, is directly and significantly relevant to an evaluation of your moral culpability. You did not, it was submitted, have the benefit of positive adult role models, particularly a paternal role model. Mr Halphen submitted that the principles in Bugmy v The Queen[2] apply to reduce your moral culpability, notwithstanding that your offending was pre-meditated. Mr Halphen put that your difficulties arising from your disadvantaged background are enduring and your moral culpability cannot be equated with an individual who did not have the same disadvantages as you.
[2] [2013] HCA 37; (2013) 249 CLR 571
50Regarding your prospects of rehabilitation, Mr Halphen submitted that they were 'extremely positive', and that your current circumstances do not mirror your background circumstances. Reliance was placed on your relative youth, your limited history of offending, your stable employment, your stable and supportive relationship, your remorse and acceptance of responsibility, and your abstinence from drug use since being charged. Mr Halphen placed particular emphasis on your recent renewed relationship with your father and half-siblings.
51Mr Halphen also placed reliance on the fact that you voluntarily participated in the ACSO program and your successful participation in the residential treatment program at Hills and Ranges Private.
52
It was submitted that you have made significant progress since being charged. Mr Halphen also submitted that you have expressed genuine remorse and gained valuable insight into your addiction and behaviour, developing a
pro-social lifestyle, and demonstrating motivation to make positive changes in your life. Reliance was also placed on your pleas of guilty entered at the first reasonable opportunity.
53
A reference from Ian Green, business manager at O&M Pty Ltd, dated
13 December 2022, was also tendered on your behalf. Mr Green states that you were originally employed as a trades’ assistant and due to your good behaviour and great work ethic, you were offered an apprenticeship. He states that you are a hardworking, well behaved and reliable employee with good work ethics. Although Mr Green’s letter is somewhat dated and was provided for the purpose of a bail application at the Magistrates’ Court, it appears consistent with the letter of reference from Mr Broadbent.
54Mr Halphen submitted that in all the circumstances, I should place you on a community correction order.
55Mr Sharp, who appeared on behalf of the Director of Public Prosecutions, submitted that the appropriate sentencing disposition is a term of imprisonment and a community correction order. The eight days you have spent on remand for these offences was not, he submitted, a sufficient term of imprisonment.
56Mr Sharp submitted that the principles of general and specific deterrence and denunciation assume considerable significance for trafficking offences.
57I was referred to the decisions in Dieni v The Queen[3] and Ellis v The Queen[4] as comparable cases. Mr Sharp noted that current sentencing practices, whilst they must be taken into account, are not a controlling factor and do not set a numerical limit on the upper and lower limbs of the appropriate sentence in any particular case. I am, in the end, required to impose a sentence, it was submitted, that is just in all the circumstances.
[3][2022] VSCA 16
[4][2018] VSCA 221
58With regard to the nature and gravity of your offending, Mr Sharp submitted that you trafficked in over nine times the trafficable quantity of cocaine, and over two times the trafficable quantity of Oxycodone. Further, the 1,4-Butanediol seized was almost 1.5 times more than the commercial quantity applicable to that drug.
59Mr Sharp submitted that you organised the acquisition and sale of the Oxycodone by way of Snapchat messages, and the sale of cocaine through other messenger applications. It was submitted that whilst it could not be said to be a sophisticated operation, it nevertheless required a degree of planning. With regard to the gel blaster seized, Mr Sharp noted that it had the appearance of a real firearm.
60
Mr Sharp stated it was obvious that you suffered profound disadvantage in your upbringing, and it was conceded that the Bugmy principles required some reduction in sentence. The application of the Verdins’ principles was not conceded and Mr Sharp was critical of a number of conclusions reached by
Ms Brandler. However, he accepted that he had not sought to cross-examine
Ms Brandler on her opinions. Mr Sharp nevertheless submitted that the nexus required between your mental illness and drug offending was not immediately apparent or established in the psychological report. He noted that your offending was premeditated. Regarding the third Verdins’ principle, Mr Sharp submitted that there was no basis for its application, but that if I was satisfied it applied, then only limited amelioration of sentence should apply. Similarly, Mr Sharp disputed the application of Verdins’ principles five and six.
61Mr Sharp informed me that you pleaded guilty at the committal mention on
25 August 2023 and that your pleas were entered at a time when the Court’s backlog of cases was impacted by the COVID-19 pandemic.
Sentencing considerations
62I consider that your overall offending was serious, particularly the offence of trafficking in a commercial quantity of 1,4-butanediol. Whilst your drug trafficking was clearly pre-meditated, I accept the submission that it was relatively unsophisticated.
63The amount of 1,4-butanediol you trafficked was a commercial quantity. The inherent seriousness of this offence is marked by the maximum penalty that may be imposed, namely 25 years’ imprisonment. I accept, however, the submission of your counsel that the amount you trafficked fell towards the lower end of the commercial quantity range. I have regard also to the fact that this charge relates to a single day of trafficking, and that there is no evidence of the extent of this trafficking.
64Whilst submissions were not put to me concerning the value of the drugs located at your premises and in your car, or the value of those actually sold, it would not appear that they were of a significant value.
65Charges 1 and 2 each carry maximum terms of imprisonment of 15 years. I have regard to the fact that the quantity of cocaine seized was 27.8 grams, at 5 per cent purity. This is a little over nine times the trafficable quantity. The quantity of oxycodone seized,10.83 grams, was a little over twice the trafficable quantity of 5 grams. I also take into account that the trafficking, the subject of Charge 1 occurred over a period of approximately three months, and the trafficking the subject of Charge 2, occurred over a period of approximately three weeks. I was not informed of the extent of your trafficking activity other than the fact that it occurred over social media and that the above-mentioned quantities of each drug were located at your premises and in your car.
66While all instances of drug trafficking must be viewed as serious, particularly given the insidious impact drugs have on members of the community and their families, I would place your conduct, in the circumstances, towards the lower end of the range in respect of each category of offence.
67With regard to Charge 4, which carries a maximum penalty of five years’ imprisonment, I do not consider this to be a serious example of such an offence given the amount of money involved. I take a similar view in relation to your possession of the imitation firearm, an offence that carries a maximum penalty of two years’ imprisonment. Although you may have felt frightened when asked to provide police with details that would enable them to access your phone, I do not consider this fact to be at all mitigating.
68I accept the submission of Mr Halphen that the sentencing principles referred to in Bugmy v R apply in your case. This was conceded by the learned prosecutor.
69You were exposed to drug abuse, sexual abuse and deprivation in your formative years. I accept that your moral culpability must be assessed in that context and is, in the circumstances, a significant mitigating factor. In my opinion, the Bugmy principle operates in your case, in the more general sense referred to in that case.
70In DPP v Drake,[5] the court stated:
'In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years, were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence, but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence'.
[5] [2019] VSCA 293 [32]
71I am also prepared to make some allowance on the basis of Verdins’ principles 1, 3, 5 and 6.
72Ms Brandler stated that you would have had your complex post-traumatic stress disorder and major depressive disorder at the time of your offending. Given your traumatic background and the factors that led to those disorders, I am prepared to accept this opinion. Furthermore, Ms Brandler considered you trafficked in illicit substances as a way to cope with your major depressive disorder symptoms, including low self-worth and suicidal ideation. She also stated that your mental illness would have impaired your ability to exercise appropriate judgment and make calm and rational choices regarding your use of and trafficking in illicit substances. These considerations, in my opinion, also operate to reduce the level of your moral culpability for the offending.
73Given Ms Brandler’s opinions, I am also prepared to moderate the need for general deterrence. However, it remains an important sentencing consideration that others who are tempted to engage in offending of this type, particularly drug trafficking, need to be deterred. As such, the moderation in general deterrence can only be modest.
74Some allowance is also to be made for the fact that a sentence of imprisonment will weigh more heavily on you than it would on a person in normal health. Furthermore, Ms Brandler stated that it is highly likely that a term of imprisonment would have a significant adverse effect upon your symptoms of complex post-traumatic stress disorder and major depressive disorder. She noted that your suicidal thoughts had increased when you had been informed of the possibility of imprisonment and that you appeared preoccupied and significantly anxious about the prospect of going to prison.
75You have pleaded guilty to these offences and did so at the earliest opportunity. Your pleas of guilty are of significant utilitarian value and entitle you to a real measure of leniency. You have spared the court and community the time and cost of a trial and have spared witnesses from having to give evidence at a trial. Your pleas of guilty were entered at a time when this court was experiencing a significant backlog of cases as a result of the COVID-19 pandemic. Pleas of guilty entered at that time should, it has been held, result in a perceptible amelioration of sentence.[6] I accept also that your pleas of guilty are indicative of your remorse and reflect an acceptance of responsibility for your conduct. Your remorse is evident not only in what you told Ms Brandler, but in your efforts since your arrest to rehabilitate and lead a prosocial life.
[6] Worboyes v The Queen [2021] VSCA 169
76Regarding your prospects of rehabilitation, I find them to be quite favourable. I am particularly persuaded by the fact that you have embarked upon drug rehabilitation and have successfully completed programs with ACSO and Hills and Ranges Private. You report illicit drug abstinence since the date of your arrest and this is supported to some extent by Mr Broadbent. You continue to be employed and are approaching the conclusion of your apprenticeship. It is your hope to eventually set up your own business as an electrician and this should be encouraged. It is also relevant to my assessment of your prospects that you have had your father and half siblings come into your life in recent times and you appear to enjoy their full support.
77You are still a relatively youthful offender and your rehabilitation is a matter of significance to the community, as well as yourself and your family.
78In R v Lam & Ors,[7] Redlich J as his Honour then was, stated:
'A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing, there is thus a broad public interest in taking into account the youth of the offender'.
[7] (2005) 15 VR 574; [2005] VSC 495 [8]
79I received yesterday further defence submissions concerning your four-week residential treatment at Hill and Ranges Private. Mr Halphen relied on the decision in Akoka v The Queen,[8] submitting that you should be given some credit in mitigation of sentence for the time you spent there as a resident.
[8] [2017] VSCA 214
80Your residency at Hill and Ranges Private occurred after the commission of the offences. It was in fact a requirement of your bail conditions. A discharge summary dated 4 January 2023, sets out the activities you undertook whilst a resident. An undated letter from Sheree Dunkley states that Hill and Ranges Private records indicate that you did not leave the facility during your stay from 15 December to 4 January. Moreover, that all clients that attend the program are supervised at all times during their stay.
81It is to be noted that the court in Akoka acknowledged that residence at a rehabilitation facility, is not the equivalent of time spent in custody, nor does it ordinarily result in a deduction of the entire period of residency from a custodial sentence. The time you spent in residential therapy, however, may inform the instinctive synthesis without being numerically identified. You were required to attend the facility and it is clear that your liberty was impacted by that requirement. In that sense, while your four-week stay was therapeutic, it was also punitive. I am prepared to have some regard to the time you spent at Hill and Ranges Private in the sentencing synthesis.
82As stated, you also spent eight days in custody on remand for these offences. Whilst that is a relatively short period of time, for a person of your age and mental health issues, who has never before been sentenced to a term of imprisonment, it is not an insignificant consideration. Having regard to that period on remand, I have little doubt that some aspect of specific deterrence will have been achieved. In my opinion, the need for specific deterrence in your case is reduced given a number of considerations, including your very good rehabilitative progress since October 2022; your very limited criminal history; your expressions of remorse; your work history; and the renewal of your relationship with your father and your extended family.
83I am also required to have regard to current sentencing practice in determining an appropriate sentence. Consideration of current sentencing practice assists in promoting consistency of approach, but sentences in other cases of the same offence, are not sentencing precedents. Such cases do not set a numerical limit on the upper and lower limits of the appropriate sentence in any particular case.
84
In addition to the cases I mentioned earlier, Mr Sharp provided two further cases to assist in my consideration of current sentencing practice. I have had regard to those cases and those mentioned at the time of the plea hearing.[9] I have also had regard to the sentencing cases referred to in Ellis v The Queen. I note in particular, the sentence imposed in DPP v Bugeja,[10] where the amount of
1,4-butanediol trafficked was 12 kilograms, a sentence of a three-year community correction order, with conditions including 300 hours of community work was imposed. A three-year community correction order was also imposed in the case of DPP v Muthia.[11] It is clear, however, that the majority of cases involving trafficking in a commercial quantity of 1,4-butanediol result in an actual gaol sentence. That said, each case must ultimately be decided on its own facts having regard to the myriad different circumstances, both objective and subjective, and paying due regard to the sentencing objectives and considerations in the Sentencing Act.
[9] DPP v Tirris [2022] VCC 1575; DPP v Goury-Hyde [2020] VCC 1460
[10] [2017] VCC 728
[11] [2017] VCC 1549
85The sentence to be imposed must also reflect the important considerations of general deterrence, just punishment, and denunciation. Having regard also to the principle of parsimony, the question for me in this case is whether the sentencing purposes set out in the Sentencing Act can be sufficiently met with the making of a community correction order or must a term of imprisonment be imposed.
86The Court of Appeal decision in Boulton v The Queen[12] makes it clear that a community correction order may be suitable, even in cases of relatively serious offences, which might otherwise have attracted a medium term of imprisonment. Moreover, that the nature and purpose of a community correction order is punitive in nature and is expected to operate punitively for every day of its operation. Having regard to all the matters put to me by both counsel, in my opinion, a community correction order in the circumstances of this case will meet the sentencing objectives of deterrence, just punishment, and denunciation. This is particularly so if onerous conditions are attached to the order. Moreover, should I sentence you to a term of imprisonment, I consider this would place at significant risk your progress towards rehabilitation and thus, the protection of the community from you.
[12] (2014) 46 VR 308
87
I have received a presentence report from the Department of Justice dated
17 April 2024. You have been assessed as representing a low risk of reoffending and suitable for a community correction order. A mental health report dated 17 April 2024 authored by Gregory Lane of Forensicare has also been received. Mr Lane states that you have a mild mental health problem or difficulty, and he recommends ongoing assessment or treatment for your mental health as a condition of a community correction order.
88Section 40 SentencingAct allows me to impose a single community correction order in respect of offences founded on the same facts or form or a part of a series of offences of the same or similar character. I propose to do so in respect of Charges 1 to 4 on the indictment and Summary Charge 4.
89The sentence I propose in respect to each of those charges is that you are to be placed on a community correction order for a period of three years with the following mandatory conditions:
·You must attend at the Morwell Community Correctional Services office within two clear working days after the commencement of this order;
·You must not commit another offence for which you can be imprisoned during the time that the order is in force.
·You must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations 2021. That means, in essence, that you must not attend at the office of Community Corrections or any other place to which they direct you, under the influence of drugs or alcohol.
·You must report to and receive visits from the Secretary or his or her delegate. By delegate that includes a reference to a community correction’s officer. You must let a Community Correction’s officer know within two clear working days of you changing your address or job.
·You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
·You must also obey all lawful instructions from and directions of the Secretary or his or her delegate.
90I also intend to impose additional conditions to those mandatory conditions. They are as follows:
· You must perform 200 hours of unpaid community over a period of three years, as directed by the regional manager. If you fail to comply with this part of the order, the Secretary to the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the provisions of the Sentencing Act.
· You must also be under the supervision order of a Community Correction’s officer for a period of three years.
· You must also undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager.
· You must also undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or a residential facility, as directed by the regional manager.
91I must also warn you Mr Blackburn that should you breach any of the conditions of the order that I intend to impose, including committing further offences punishable by imprisonment, you will be brought back before this court and resentenced on the original offences and sentenced for breaching the community corrections order. Do you understand the consequences should you breach the order?
92OFFENDER: Yes, Your Honour.
93HIS HONOUR: Do you consent to being placed on the order in the terms I have proposed, or would you like to speak to your barrister before doing so?
94OFFENDER: I - Yes Your Honour, I - I consent.
95HIS HONOUR: You consent, very well. Mr Halphen, do you wish to speak to your client?
96MR HALPHEN: No, Your Honour.
97HIS HONOUR: Thank you. I will in those circumstances, place you on the order in relation to those specific charges, in the terms and conditions that I have just read out to you.
98In respect to Summary Charge 7, you are convicted and fined the sum of $300.
99Pursuant to section 6AAA of the Sentencing Act, had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of two years six months imprisonment with a non-parole period of 18 months. Mr Halphen, is there any objection to the disposal and forfeiture orders sought?
100MR HALPHEN: No, Your Honour.
101HIS HONOUR: Thank you. I will make the disposal and forfeiture orders that have been sought Mr Sharp. Are there any other matters which I need to address?
102MR SHARP: No, Your Honour.
103MR HALPHEN: No, Your Honour.
104HIS HONOUR: Very well, you may step out of the dock Mr Blackburn and just stand behind your counsel, while we get you to sign the community corrections order. Could you provide a copy to Mr Sharp and to Mr Halphen?
105ASSOCIATE: Yes, Your Honour.
106HIS HONOUR: Yes. Mr Halphen could you, with your client, just check the order and if it represents what I have said, have your client sign it please.
107MR HALPHEN: Yes, Your Honour.
108HIS HONOUR: Mr Sharp, I will get a copy of the order for you.
109MR SHARP: Thank you, Your Honour.
110HIS HONOUR: While that is coming, may I thank both counsel and your instructors for the assistance you have given me in this difficult sentencing task.
111MR SHARP: Thank you, Your Honour.
112MR HALPHEN: Thank you, Your Honour.
113HIS HONOUR: Thank you. Please adjourn the court.
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