Director of Public Prosecutions v Bradshaw
[2024] VCC 1891
•7 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-01048
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN JOHN BRADSHAW |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2024 | |
DATE OF SENTENCE: | 7 November 2024 | |
CASE MAY BE CITED AS: | DPP v Bradshaw | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1891 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – sentencing
Catchwords: Commonwealth offending, trafficking controlled drug (cocaine), contravening requirement of order, possession of drug of dependence (steroids), offence of possession of cannabis to be taken into account under s.16BA of Crimes Act 1914 (Cth).
Legislation Cited: Criminal Code (Cth) Crimes Act 1914 (Cth) Drugs Poisons Controlled Substances Act 1986 (Vic). Sentencing Act 1991 (Vic).
Cases Cited:The Queen v Verdins (2007) 16 VR 269: Markarian v The Queen (2006) 228 CLR 357 DPP v Holder (2014) 41 VR 467, Chandler v R [2010] VSCA 338; Mokbel v R (2011) 211 A Crim R 37; Quah v The Queen [2021] VSCA 164, R v Nguyen [2008] VSCA 235; Gregory (a pseudonym) v R [2017] VSCA 151; R v Lamella [2014] NSWCCA 122 DPP (Cth) v Thomas [2016] VSCA 237; Lane v The Queen [2017] VSCA 289; Barbaro v The Queen [2012] VSCA 288; Bugmy [2013] HCA 37; Jawahiri v The Queen [2021] VSCA 287; Hermann [2021] VSCA 16; DPP and CDPP (Cth) v Swingler (2017) 269 A Crim R 526; Scerri v R [2010] VSCA 287
Sentence: TES of 3 years 10 months with non-parole period of 2 years 4 months. 512 days PSD.
S.6AAA: 5 years 8 months with non-parole period of 4 years 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Sprague | Commonwealth DPP |
| For the Accused | Mr A Halphen Ms V Drago | Askan Tai Lawyers |
HIS HONOUR:
OVERVIEW
1Brendan Bradshaw, you have pleaded guilty to the following charges on indictment:
Charge Offence and Section Date / Particulars Maximum Penalty 1 Traffic in a controlled drug s302.4(1) Criminal Code (Cth) 14 June 2023
CocainePure weight: 209g
10 years imprisonment 2 Contravene requirement in an order under 3LA of the Crimes Act 1914 (Cth) s3LA(5) Crimes Act 1914 (Cth) 14 June 2023 5 years
imprisonment
3 Possession of a drug of dependence
s73(1) Drugs, Poisons and Controlled Substances Act 1981
14 June 2023
Anabolic and androgenic steroidal agents1 year imprisonment
(if not related to trafficking)2I am also to take into account an additional charge pursuant to s 16BA of the Crimes Act 1914 (Cth), in passing sentence on Charge 1. That offence to be taken into account is:
Charge Offence and Section Date / Particulars Maximum Penalty 1
Possessing a controlled drug, namely cannabis, contrary to subsection 308.1(1) of the Criminal Code (Cth).
14 June 2023
2 years, or 400 penalty units or both.
3On your behalf, Mr Halphen and Ms Drago point to the following factors in mitigation in support of the submission that you should be sentenced to a disposition that allows you to be released immediately or in the near future, under a Recognisance Release Order (RRO); you have pleaded guilty at the earliest opportunity; you are committed to your rehabilitation; you have strong protective factors; an excellent work history; the deprivation you suffered in adolescence; you have been a model prisoner for the past 16 months; and you have good prospects of rehabilitation.
4Mr Sprague on behalf of the Director says that a sentence of imprisonment involving a head sentence and a non-parole period is the only appropriate sentence in all the circumstances of the case including the nature and seriousness of the offending, the importance of general deterrence and denunciation, and also specific deterrence which looms large in light of your significant relevant criminal history. It is submitted that a sentence involving release on an RRO is not open in your case.
5I have determined I will impose a head sentence and non-parole period in this case. My reasons for doing so follow.
CIRCUMSTANCES OF THE OFFENDING [1]
[1]Taken substantially from Exhibit A: Prosecution Opening for Plea dated 24 September 2024.
6You were 51 years of age at the time of the offending and residing in an apartment in 23 Mackenzie Street, Melbourne.
Search Warrants, Seizures and s3LA Order
7At 5:00 am on 14 June 2023, Police executed a s 3E Crimes Act 1914 (Cth) warrant at your residence. Police executed warrants in relation to the premises, yourself, and two vehicles.
8You were in the bed of the main bedroom and arrested. You were the only person in the premises. A champagne-coloured Apple iPhone was laying on the bed next to your right hand. You were cautioned and provided with copies of the search warrant and rights.
Charge 2: Contravene requirement in an order under 3LA of the Crimes Act 1914 (Cth)
9You were served with orders pursuant to s 3LA of the Crimes Act 1914 (Cth), directing you to provide any information or assistance necessary to enable the AFP to access devices found either on you or at the premises the subject of the warrant.
10AFP seized the champagne-coloured iPhone and two other mobile phones from the premises. When asked, you did not provide the password for any of them devices.
(a) In relation to the champagne-coloured iPhone found with you in your bed you refused to provide access to the device;
(b) In relation to another white and champagne-coloured iPhone found in the bedside table drawer, you stated you did not recognise the phone and did not even know the passcode;
(c) In relation to a grey Apple iPhone found on the kitchen island bench, you said you recognised the device, but it was not yours, and did not know the password.
11Consequently, Police were unable to access the contents of the seized phones.
12AFP officers searched your residence with assistance from the canine unit and the following relevant items were located and seized:
(a) In a blue zipped case behind the microwave:
(i)Three medium sized clip seal bags each containing a quantity of white powder, later confirmed to be cocaine;
(ii)A spoon and a set of scales.
(b) A large quantity (approximately 1,000) small clear clip seal bags, in a zipped bag on top of the TV unit;
(c) Various vials and tablets containing anabolic and androgenic steroid agents, and testosterone, located on the dining table and in a bag behind the TV.
(d) 1 x bag of green vegetable matter, later confirmed to be cannabis (located within a duffle bag in the lounge).
Analysis of Seized Items
Charge 1: Trafficking in a controlled drug
13Analysis of the white powder from the three clip seal bags found behind the microwave, confirmed that the powder contained cocaine.
(a) Two bags contained a purity of 83.5 per cent of cocaine, with a pure weight of 192.1 grams; and
(b) One bag contained a purity of 76.4 per cent cocaine, with a pure weight of 16.9 grams.
14The total amount of pure cocaine seized was 209 grams.
Charge 3: Possession of a drug of dependence
15Various drugs of dependence, being anabolic and androgenic steroidal agents, were seized from the premises (in bottles and vials):
s16BA scheduled offence: Possess a controlled drug
16Analysis of the green vegetable matter seized from the lounge room confirmed it was cannabis, with a total weight of 440.5 grams.[2]
[2]Section.308.1 Criminal Code (Cth). Maximum penalty 2 years, or 400 penalty units or both.
Interview
17You were interviewed at AFP Headquarters on 14 June 2023. You stated that you lived alone at the Mackenzie Street apartment, and answered 'no comment' in relation to the items seized from the premises, as was your right.
Case history
18The matter proceeded through the criminal justice system (against you alone as there are no co-offenders) [3] from the date of charge in the following way:
[3]The AFP arrested and charged other people during the same operation, but they are charged with unrelated offences and are not, strictly speaking, co-offenders.
Date
Event
14 June 2023
Date of offending.
Search warrants, items seized, arrest, interview and charge.
15 June 2023
Filing hearing. Remanded in custody.
18 October 2023
Committal Mention.
22 January 2024
Committal Mention.
22 February 2024
Committal mention.
15 March 2024
Committal mention.
26 April 2024
Committal mention. Adjourned for resolution discussions.
4 June 2024
Committal mention. Adjourned for discussions.
26 June 2024
Committal mention.
Committed and entered guilty pleas to the current charges following negotiations
24 October 2024
Plea Hearing – County Court.
498 days PSD as of the plea
7 November 2024
Sentence
19Suffice to say I have treated your plea as an early one, given the evident efforts to resolve the matter over a long period of time.
MATTERS PERSONAL TO THE ACCUSED [4]
[4]Taken principally from Exhibit 1: Outline of Defence Submissions for Plea dated 18 October 2024
Background and family
20You were born in Ingham, Queensland and raised in Townsville. You are now 53. 'Too old' to be offending in your own estimation. I cannot help but agree.
21Your parents separated when you were two. You have five siblings (four of which are half-siblings). You remain in contact with your family.
22You have two daughters from a previous marriage and previous long-term relationship. You remain in contact with both children. Your younger daughter, Eva, suffers from ASD and ADHD. Her plight has a substantial part to play in the plea advanced on your behalf
23Your early years were marked by hardship and impoverishment.[5] You were estranged from your father. Your mother struggled as a single parent. You were bullied and ostracised throughout your school years.
[5]Alluded to in Sandrine Klajic’s reference – part of Exhibit 2:Bundle of 11 items of subjective material dated 18 October 2024 and confirmed in Exhibit 3: Report of Carla Ferrari dated 24 October 2024.
24Between the formative ages of 10 and 19 you were exposed to family violence by a stepfather who was an unemployed gambler and alcoholic, who was not just violent, but also squandered whatever money your family needed to survive pursuing his own vices.
25You gravitated toward peers from troubled backgrounds. You were introduced to alcohol and cannabis during school. You used these substances to self-medicate and escape.
Education and employment
26Upon completing Year 11 in Townsville, you worked as a labourer for two years.
27In 1990, you joined the navy and worked as a ship diver and in electronic warfare. You spent 12 years serving your country and working globally in this capacity.
28After leaving the navy, you completed requirements in commercial diving training and worked several years in underwater salvage along Australia's east coast.
29You then worked in traffic management in Melbourne.
30Between 2007 and 2011, you ran a successful demolition company with some 12 employees.
31Prior to the offending before me and the accompanying remand, you worked in railway constructions at Flagstaff.
32I am told you are committed to maintaining your fitness and completed a personal training course in 2005 and attended a fitness college in Sydney. I am told that you are, most of the time at least, focused on your health and fitness and that is said to be part of your reason for possessing the steroids subject to Charge 3.
33You have a remarkable work history and work ethic. You appear to be skilled and industrious when you want to be.
Drugs and alcohol
34Your history with drugs and alcohol began prior to entering the navy, primarily with marijuana and heavy alcohol consumption (in the way I have just outlined above). But alcohol consumption especially was totally normalised in the armed services.
35The navy culture involved a 'party' lifestyle and there you began using MDMA in the 1990s in that context. Your abuse of cocaine began in the late 1990s and has proven to be extremely problematic for you to stay away from – as a habitual user, or trafficker.
36The pull of that drug and the grip it has on you is a constant source of disappointment. That disappointment in yourself, and the knowledge that you could and should be part of the workforce, living a lawful life, and caring for your daughters should be a very strong incentive to walk the straight road, but it has not. Lengthy terms of imprisonment depriving you of your liberty and the life that you wish to lead should have had a real personal deterrent on you, but thus far nothing has brought about long-standing or substantial change in your behaviour. I am told that that position might be finally changing. I hope that is true. You have proven to be very difficult to deter thus far.
Mental health and Verdins
37You have engaged a treating psychologist, Alison Cullen whilst in custody. She sees you for consultations online in prison. She provided a report to the Court in which she opines that your depressive symptoms remain in the moderate range and that you would further benefit from ongoing treatment to address this underlying depression.[6]
[6]Part of Exhibit 2: Bundle of 11 items of subjective material dated 18 October 2024, Psychological Report of Alison Cullen dated 14 October 2024, p 1.
38I will deal in a moment how your mental health was relied on during the plea now, for convenience.
39Under the cover of an argument that Verdins[7] limb 5 was applicable (that is to say, imprisonment will weigh more heavily on you than a person in normal health), it was submitted that Ms Ferrari's diagnoses that you suffer from a number of conditions including Persistent Depressive Disorder (PDD), Generalised Anxiety Disorder (GAD), and likely Attention Deficit Hyperactivity Disorder (ADHD) [8] As a result of those conditions, Ms Ferrari opines that:
…it is highlighted that imprisonment would likely weigh more heavily on Mr Bradshaw than a person without his conditions. In individuals such as Mr Bradshaw with PDD, GAD, and likely ADHD, there is a potential for significant mood fluctuation resulting in emotional dysregulation which may be exacerbated within the prison environment…[9]
[7](2007) 16 VR 269.
[8]See Exhibit 3: Report of Carla Ferrari dated 24 October 2024, p. 12, [129].
[9]See Exhibit 3: Report of Carla Ferrari dated 24 October 2024, p 16, [153].
40Ms Ferrari does acknowledge that you appear to be coping in a custodial setting.[10] It is said that this does not detract from the significance of the burden of imprisonment suffered by you, but I tend to disagree.
[10]See Exhibit 3: Report of Carla Ferrari dated 24 October 2024, p 16, [153].
41A close analysis of Ms Ferrari's report, reveals that many of the conditions that she refers to, are 'provisional' diagnoses only, or conditions which you have symptoms 'consistent with' which might be 'indicative of a condition', but not much more than that. Much of this aspect of her report is for want of a better word, impressionistic. The above quote is itself couched in terms of potentialities that may or may not eventuate.
42The application of Verdins does not necessarily depend on the diagnostic labels, but rather what the evidence shows about the nature, and effect of the mental impairment experienced by the offender. When one requires strong or cogent evidence to find the applications of Verdins principles[11] it is difficult to accept that the test is made out in that sense. I appreciate the author expresses a considered view about the issue at hand vis-a vis your time in custody, but it does not truly appear to be born out in the evidence.
[11]Verdins (2007) 16 VR 269.
43If anything, your presentation and engagement seems to be prospering in custody, not deteriorating.
44I am not inclined to give any weight to Verdins limb 5 in these circumstances. Even if it were to apply, it would have minimal, if not negligible weight.
Forensic history
45You admit a relevant prior criminal history. For present purposes, I am focussing on the matters of real gravity, resulting in often substantial prison sentences, as opposed to minor or summary matters.
46It was put on your behalf that many of the prior matters were 'dated'. There is a reason for that, not least of all because of the sheer length of the sentences historically imposed on you.
47In January 2007 you were sentenced in the NSW District Court to two and a half years' imprisonment to be served by way of periodic detention for supply prohibited drug and traffic controlled drug. The order states that you were to be released on parole for that sentence on 8 October 2008. Assuming the sentence concluded sometime in around 2009, you were then at large in the community for around four years.
48In February 2013, you were taken into custody for supply commercial quantity of prohibited drug and other associated offences, including possess proceeds of crime of less than $100,000. You were sentenced in the NSW District Court to seven years' imprisonment with a non-parole period of four years. Once pre-sentence detention (PSD) was taken into account, you were released on parole in February 2017 and were to remain on parole until February 2020.
49Sadly, having been at large for about 16 months, you were taken back into custody in June 2018 for offences that occurred in Victoria, those offences were extortion with threat to inflict serious injury and cause injury intentionally. This breached your NSW parole, of which you still owe, I am told, one year and nine months. [12] You were sentenced for that Victorian matter in December 2019 in this Court.[13] You were ordered to serve four years with a non-parole period of 32 months. Once PSD was calculated, your earliest release date on parole would have been February 2021. I am told you were not released then but rather released in May 2022. I note that the head sentence was due to expire in around June 2022.
[12]I note this prospect of the breach and the service of any outstanding term of parole is not a matter I am consider by way of totality for instance in this exercise.
[13]See Exhibit B: Reasons for sentence by Judge Lewitan [2019] VCC 2081.
50Having then been in the community for only about a year, you committed these offences before me in June 2023, again in Victoria. You have been in custody as I said for now 16 months.
51Since 2014 you have been the subject of head sentences of imprisonment totalling 11 years. You have been either in custody on remand, or serving a sentence or the subject of a parole order for the vast majority of the last decade.
Context to offending
52I am told that this offending occurs in the context of you relapsing into cocaine use.
53You told Ms Ferrari[14] you were experiencing stressors at the time. You were employed casually (anywhere two to six shifts per week) and the shifts were irregular, though lucrative. You were partying more than you liked and spending more than could afford.
[14]Exhibit 3: Report of Carla Ferrari dated 24 October 2024, p 16, [83].
54Ms Ferrari says[15] that given your chronic history it is likely there has been deleterious issues with your frontal cortex – unpredictive behaviour leading to a cycle that you cannot remove yourself from. Later she recognises a number of contributing factors to your offending behaviour including emotional dysregulation and the fact that you were likely experiencing at the time impaired problem solving.
[15]Exhibit 3: Report of Carla Ferrari dated 24 October 2024, p 167 [143] – [145].
55Your counsel said the large amount of cocaine in your residence came by way of a deal to purchase a quarter of a kilo at half the price. It is said that you were not selling at that time. This of course is unconfirmed and unconfirmable.
56Ms Ferrari reports that nights out (benders) would cost you thousands of dollars and you would shout everyone because you had cocaine. This does not fully account for your criminality. You have pleaded guilty to trafficking and accordingly, the cocaine in your possession was for the purposes of sale. There is obviously a substantial amount of cocaine located in your house. There were scales and 1,000 clip-seal bags in the house located nearby.
57There is more to the offending than that though. I was invited to take a view that the trafficking was engaged in to support your own habit and should be treated accordingly. I can accept in part it may have been done to support your habit, but that is not the sole reason. It is as I said a significant amount of cocaine. I find it hard to accept that you were just recouping expenses, but I cannot detect any overt signs of enrichment at your home or the way you lived. It is impossible to determine whether you were part of a broader enterprise or if so, what role you played in it. On the facts I am presented with, you appear to be a trafficker of a substantial quantity on your own and you will be sentenced that way.
58In terms of Charge 2 – failure to provide details to access the phones, there seems to be different levels of ownership or knowledge claimed by you. Clearly, the champagne colour phone belongs to you. Mr Halphen said you did not provide access to that device as there were a number of personal photos and material on that phone that you did not want the Police to have. I do not accept that this is the complete reason that you failed to comply with the Order. The broader circumstances of your drug possession for sale tells against that being the main, or only reason for your refusal.
59In relation to the other phones, it is not quite clear what your position is. Your Counsel said that one was broken and the other you simply did not recognise even though it was in your own home.
60You have pleaded to Charge 2 that involves failing to provide access to 'devices' plural. I sentence you on that basis. No defence was advanced to the effect that you had a lawful excuse to not comply. You have accepted that this conduct of this nature does indeed frustrate authorities.
61The anabolic substances located were apparently yours for personal use described as for 'energy' or 'fitness'
62No issue is taken that the cannabis located in the duffle bag was not for a purpose related to trafficking. I am required to take this matter into account under s 6BA of the Crimes Act 1914 (Cth). I deal with this in more detail, below.
Present circumstances and impetus for change
63Since your most recent remand, you have had plenty of time to consider what ongoing drug use might do to you at your age, and to reflect on your position and obligations as a father.
64You have, as I have said, two significant relationships each bearing a daughter. First for a seven year period in 1992. Your daughter Molly is now 27 and works as a nurse. She lives in Oatley in Sydney. You are on good terms with her.
65The second relationship you had is with Sandrine, who provided a reference. Your daughter together, Eva, now 17, lives with her mother in Randwick, NSW. She was diagnosed with a severe form of autism I am told whilst you were on remand and that diagnosis has crystallised your resolve regarding your future. She requires intensive assistance.
66From the tenor of the reference provided by Sandrine, she is open to you maintaining contact for various periods of time to build a relationship and offer respite and help. You have had regular contact in the past. Upon your ultimate release, you propose to remain in Victoria but visit Eva fortnightly to spend meaningful time with her. The reference from Sandrine confirms your express desire to focus on her and the special needs of your daughter. She is encouraged by your efforts.
67You have engaged in counselling with Ms Cullen in custody.[16] She provided a brief but informative report. You have undertaken four treatment sessions, and are developing insight into triggers and areas to change. Ms Cullen's report demonstrates you are motivated to provide care to Eva.
[16]Part of Exhibit 2: Bundle of 11 items of subjective material dated 18 October 2024, report of Allison Cullen 14 October 2024.
68Your devotion to Eva is not confected or constructed for the purposes of this plea. I find your interest in caring for her (which you have expressed to Sandrine) is genuine.
69You have engaged in a number of prison programs. Certificates of completion have been provided[17] whereby you invested a total of 62 hours of time in the nine programs offered between March and August of this year.
[17]Part of Exhibit 2:Bundle of 11 items of subjective material dated 18 October 2024.
70You believe that you now possess the necessary strength and conviction to address your issues – despite occasional relapses, you feel that you have improved substantially. [18]
[18]Exhibit 3: Report of Carla Ferrari dated 24 October 2024, [54].
71This sense of purpose is encouraging and perhaps forms a basis to conclude that there is an impetus for you to reform.
MATTERS OF SENTENCING PRINCIPLE
GENERAL
federal offences
72The fundamental principle in sentencing a federal offender is the Court must impose a sentence 'that is of a severity appropriate in all the circumstances of the offence'. A number of particular factors for consideration by a sentencing Court are set out in s16A(2) of the Crimes Act (the Act). Counsel, I will not list them orally.
73In particular, although not referred to in s16A(2) of the Act, key common law principles of parity, proportionality and totality also apply since they are relevant to fixing a sentence of a severity appropriate in all the circumstances. Subject to the limited statutory exceptions s16A of the Act, sentencing requires an 'instinctive synthesis' of relevant considerations.
State offences
74Charge 3 on the indictment is a Victorian offence, for which you fall to be sentenced in accordance with the Sentencing Act 1991 (Vic) (‘Sentencing Act’) and applicable common law principles.
75The purposes for which sentence may be imposed are set out in s5(1) of the Act: just punishment, specific and general deterrence, rehabilitation, denunciation and protection of the community.
76Section 5(2) of the Act contains a non-exhaustive list of matters to which the Court must have regard in sentencing and I have considered them.
77The standard sentence scheme, mandatory custodial sentence provisions, minimum non-parole provisions and serious offender provisions do not apply in this case.
Maximum penalties
78The maximum penalty for an offence, taken with other relevant factors, provides a yardstick against which a sentence is to be considered.[19]
[19]Markarian v The Queen (2006) 228 CLR 357, [30]-[31].
THE OFFENDING
Nature and Gravity
Trafficking generally
79Trafficking in drugs is an inherently pernicious trade. Drug offences are a substantial societal evil that causes significant societal harm and affects its most vulnerable members. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent. General deterrence, as the dominant purpose for which sentence is to be imposed, has been emphasised by sentences in many Australian jurisdictions. That much is inarguable.
80The community has a justifiable expectation that such offending will be treated very seriously. The consequences for engaging in such serious criminality must be such that any like-minded members of the community who are attempting to behave like this, or in a similar fashion, will pause to consider whether the potential rewards are worth the risk of being caught and being punished.
81General deterrence and denunciation assume real prominence in sentencing for serious drug offences including trafficking. Specific deterrence and protection of the community also assume particular importance in sentencing for this type of offending.
82The respective maximum penalties for trafficking offences vary according to the quantity of drugs trafficked. Quantity is therefore a significant and relevant factor to the sentencing task. All other things being equal, the greater the quantity trafficked the more serious the offence. [20]
[20]Gregory (a pseudonym) v R [2017] VSCA 151
83Other relevant factors in assessing the objective seriousness of the offending include the duration, intensity, volume and frequency of the trafficking, and the offender's role and motivation.[21]
[21]R v Nguyen [2008] VSCA 235 at [61]; Gregory (a pseudonym) v R [2017] VSCA 151; (2017) 268 A Crim R 1, [24].
84The trafficking in this case (Charge 1) is put on the basis of possession of drugs for sale. The maximum is 10 years. Trafficking by possession for sale is no less serious than other forms of trafficking, as the Court of Appeal said in DPP v Holder:[22]
[22]DPP v Holder (2014) 41 VR 467 at [25], citing Chandler v R [2010] VSCA 338 at [25]; and Mokbel v R (2011) 211 A Crim R 37 at 45–7, [37]–[43]. Reaffirmed in Quah v The Queen [2021] VSCA 164, at [44]-[47].
85The line of authority including DPP v Holder was reaffirmed in Quah v The Queen, and it is submitted these principles are applicable to the Commonwealth trafficking offence that you have pleaded to.
86Charge 1: Traffic a controlled drug – cocaine
(a) The amount of cocaine trafficked, by possession for sale, was substantial: 209 grams (pure weight).
(b) This is 104.5 times the trafficable quantity threshold for cocaine as a controlled drug. It is 83 per cent of the marketable quantity threshold.[23] It is therefore at the high end of the quantity range for this offence.
(c) The cocaine was hidden behind the microwave, with a large quantity of 1,000 small clip-seal bags found on top of the TV.
(d) It can be inferred, and I do so, that the offending was in part for profit, including to support your own drug use.
[23] Item 67 in table, clause 1 of Schedule 1 to the Criminal Code Regulations 2019 (Cth).
87On any view of it, this is a substantial quantity of drugs you possessed for sale. It was committed by you in circumstances where you have been the subject of not insubstantial sentences for similar offending in the past.
Charge 2: Contravene requirement in s3LA order
88You failed to comply with the order which was issued by court, to provide access to three phones seized from your home. Police were unable to access the contents of the phones.
89The offending is serious because it contravenes a court order and was designed to frustrate the investigation. I am reluctant to accept the reasons you proffered for failing to provide access details to all three devices, the subject of the charge.
Charge 3: Possess drug of dependence
90This charge relates to various anabolic and androgenic steroids in the possession of you. It is not alleged that any of these substances were possessed for trafficking, and I do not treat them as though they were. The maximum penalty is one year, and I do not consider any cumulation on this sentence for this charge to be warranted.
Offence to be taken into account: Possess controlled drug – cannabis
91The weight of the cannabis seized from the lounge room was 440.5 grams, contained in a single bag.
92It is 1.7 times the applicable trafficable quantity and 1.7 per cent of the marketable quantity (25 kilograms).[24]
[24]Item 50 in table, clause 1 of Schedule 1 to the Criminal Code Regulations 2019 (Cth).
93I have taken into account the necessary requirements when dealing with the s16BA schedule into account.[25]
[25] The principles applicable to sentencing an offender when another offence is taken into account have been stated by the New South Wales Court of Criminal Appeal in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146. The reasoning in Attorney General’s Application applies equally to s 16BA of the Crimes Act 1914: see R v Lamella [2014] NSWCCA 122 at [48].
94The offence here is possession of a comparatively small amount of cannabis. It is attached to the first charge of trafficking in a substantial amount of cocaine. It is true that it establishes you as a user of more than one illegal substance which informs your prospect of reform from drug use, and increases the need for specific deterrence, but overall it does not add much, if anything to the gravamen of the totality of the offending that I am dealing with.
THE OFFENDER
Plea of guilty and Utilitarian Value
95You are entitled to a significant discount for your plea, made at the earliest possible opportunity.
96You are entitled to a discount on sentence for at least the utilitarian value of that plea. The timing of the plea is relevant to the weight to be given to it, as the benefits to the criminal justice system flow particularly from an early plea.[26]
[26]See DPP (Cth) v Thomas [2016] VSCA 237 [63];
97The matter resolved at an early stage in June 2024, without the matter proceeding to a contested committal.
98No person was cross-examined, and the administration of justice was facilitated by your plea. The value ascribed to this plea will be reflected in the sentence I impose and indeed in the s.6AAA Sentencing Act declaration that I make at the conclusion of these sentencing remarks.
Prior criminal history
99You have a significant and highly relevant criminal record, including the prior convictions (excluding driving and dated matters) that I have taken you to already.
100This history reveals repeated serious offending, including in relatively recent times, with lengthy terms of imprisonment failing to deter you.
101Your previous character and criminal history is relevant to sentencing, but it does not and will not be used in aggravation to increase a sentence or to doubly punish you. It assists me in determining your moral culpability, persistent lawlessness or propensity to commit particular crimes, your prospects for reform, and increases the need for specific deterrence and community protection. These factors are all significant in this case.
Pending matters
102There is, as I said, an NSW warrant apparently for breach of parole, which relates to the unserved portion of the sentence imposed in August 2014. The balance of parole is one year and nine months and five days. Whilst I take into account your past compliance with orders in assessing your prospects, I do not take into account this potential reclamation of you by the NSW parole board in terms of adjusting my sentence in terms of totality considerations for instance.
Remorse
103Your remorse is apparent through your pleas of guilty, from the supporting material relied upon and your conduct whilst in custody.
104Ms Cullen states that she 'noted [your] ongoing use of illicit drugs violates your values, leading to periods of shame, self-loathing and depression.'[27]
[27]Exhibit 2: Bundle of 11 items of subjective material dated 18 October 2024, Psychological Report of Alison Cullen dated 14 October 2024, p 1.
105The Crown says genuine remorse is an important element in sentencing if it enhances the offender's prospects of rehabilitation and reduces the need for specific deterrence and community protection. Even genuine remorse, however, does not displace the need for the gravity of the offending to be reflected in the sentence.[28]
[28]Lane v The Queen [2017] VSCA 289 at [42].
106Merely entering a guilty plea does not establish remorse and proper evidence is required.[29] I was invited to be cautious before accepting that this plea indicates remorse warranting more than a utilitarian discount.
[29]Barbaro v The Queen [2012] VSCA 288, [40].
107Ms Ferrari says you expressed remorse for the impact your incarceration has had on your loved ones (this is part of your cycle of drug abuse, incarceration and absence)[30] I am not sure this goes as far as recognising the significant societal harm you do through the selling of drugs.
[30]Exhibit 3: Report of Carla Ferrari dated 24 October 2024, [89].
Mental health
108I have already considered the Verdins issue above.
Bugmy
109Drawing on that aspect of your childhood and adolescence involving deprivation, experiences of 'childhood instability and deprivation' it is the case that this resulted in 'poor learning outcomes’ for you, bullying and social ostracism.[31]The consequence of coming from an impoverished background saw you gravitate towards peers with 'similarly troubled backgrounds'.[32]. Your introduction to alcohol and cannabis was against that background.
[31]Exhibit 3: Report of Carla Ferrari dated 24 October 2024, [131].
[32]Exhibit 3: Report of Carla Ferrari dated 24 October 2024, [132]
110Profound childhood deprivation is directly relevant to sentencing, in and of itself, because it is likely that moral culpability is less than for someone whose early years have not been marked by such disadvantage. The effects of such hardships do not diminish over time and full weight must be given to those matters in sentencing. The principles are relevant to the court's assessment of moral culpability for the offence itself (as well as any weight to be given to your prior criminal history).
111Counsel, I have included the quote from Jawahiri v The Queen[33], the Court of Appeal – at [73(d)] – they will appear in my written reasons.
[33] [2021] VSCA 287.
112Your background of dysfunction and trauma is such that – adopting the general approach8 – your moral culpability is reduced and acts to mitigate your sentence.[34]
[34]Hermann [2021] VSCA 16 at [36]-[41]
113The Crown accepted the principles in Bugmy have some application, but of course, it is a question of fact and degree. There are two sides to the Bugmy principles. On the one hand an individual's culpability may be reduced somewhat. On the other, if the offending is persistent and serious and the offender cannot be successfully or safely managed in the community, then community protection must be elevated.
114I have tried to strike the right balance by reducing your moral culpability somewhat because of your upbringing, but given I find that you have got guarded prospects of reform that I will come to in a moment, the community to some extent needs protection from you (this is demonstrably true given your history and the risk that you still present) which is also factored into my sentence.
Sentencing considerations.
Deterrence, protection and denunciation
115In this case, principles of general deterrence, protection of the community and denunciation play roles in the exercise of sentencing.
116Your Counsel accepts that specific deterrence plays a role, given your history. I find that this is an important matter that needs to be reflected in the sentence I impose.
Prospects for rehabilitation
117Your Counsel says your treatment with Ms Cullen has been the first time you have attempted to meaningfully engage with treatment. This treatment was prompted by your own disappointment in yourself.
118You have immersed yourself in therapeutic courses in custody, where possible, to address underlying issues.
119Notwithstanding substance abuse issues, you can be 'functional'. You have an excellent work history with a strong work ethic. You are an adaptable worker who is readily employable. This may facilitate a positive trajectory to a drug-free existence.
120You have reached a stage where you have apparently recognised replacing substance use with strategies to prevent relapse is important. You are in remission at the moment by virtue of imprisonment.
121Ms Ferrari states you are improving your insight into substance abuse and are able to articulate strategies for staying clean. This enhances your prospects.
122
She considers you to be a moderate risk of general recidivism. Your criminal involvement does not appear to be due to a criminal belief system, but rather due to mental health and chronic drug use. This chronic pattern of self-medication through drugs increases your risk of further crime. You exhibit poor
problem-solving, a risk that decreases with proper ongoing engagement.
123Your counsel concedes that the foregoing compels a conclusion that you should be supervised upon release.
124Your daughters are crucial in motivating you to remain sober. You are older. They are getting older, and you wish to be an active part of their life, and not absent because of ongoing incarceration.
125The Crown says while you have a history of employment and have engaged in some treatment in custody, your prospects of rehabilitation need to be assessed realistically in light of your history of serious offending and long-term substance abuse. Prospects of reform should be addressed cautiously where they are dependent on the success of an asserted desire to break a long-standing addiction, noting this offending is said to have occurred against the background of again having relapsed. The prosecution submits on the available evidence, it is not open for me to actively find that your prospects of rehabilitation are 'good'.
126Your prospects of rehabilitation will also need to be balanced against other purposes of sentencing including deterrence both specific and general, and denunciation.
127At best your prospects are guarded or can be treated with cautious optimism. That is because quite fairly, the Crown have said I ought to have due regard to the steps taken already towards reform.
128Whatever your prospects that you have – they can best be expressed in the following way: under the right circumstances your prospects might be good, but it depends on how committed you are to your own reform after you have been released.
129This depends on the continuation of steps you have taken in custody, and this is fraught given your history of brief abstinence in the community, then relapsing, then offending.
130Having regard to all relevant matters, including the objective gravity of the offending it is submitted that a period of less than time served was the appropriate disposition for you. Alternatively, your counsel argued a recognisance release order can be imposed resulting in an immediate release.
FORMULATION OF SENTENCE
131For any sentence of imprisonment imposed for a federal offence, the Court must state the date upon which the sentence is to commence (which cannot be backdated): under s19 Crimes Act 1914.
132Where a federal offender is convicted of a federal offence and the Court imposes a sentence that exceeds three years, I must fix a single non-parole period.
133However pursuant to s19AB(3), I may decline to fix a non-parole period under certain circumstances. That is not the case here.
134Where the Court imposes a head sentence not exceeding 3 years, it must make a RRO and must not fix a non-parole period, however where the period of imprisonment is under six months, I am not required to make a RRO at all.
135Pursuant to s19AC(4) the Court may decline to impose a RRO where it is otherwise required to do so, for the same reasons which apply to non-parole periods.
136If the Court imposes a federal sentence and imposes either a non-parole period or an RRO it must explain, or cause to be explained, the purpose and consequences of fixing the non-parole period or the RRO, including the consequences of failing to comply with the conditions.
137Once the separate sentences and minimum terms have been set for the federal and State offences, the court needs to identify when the federal and State sentences should commence. That may be expressed in any of the three methods set out in DPP and CDPP (Cth) v Swingler,[35] but it must ensure that:
(a) no federal sentence commences later than the end of any sentence of imprisonment imposed for the State offence; and
(b) if a non-parole period is fixed in relation to the State sentence, the first federal sentence must commence no later than immediately after the end of the State non-parole period.
[35][2017] VSCA 305.
138On the issue of totality, whilst the offending covered by the charges is connected, a degree of cumulation is required between 1 and 2 to reflect the separate and distinct offending.
Dispositions contended for
139Mr Halphen and Ms Drago acknowledged that trafficking is a serious matter. The present offending is inherently serious, though at a distance from other trafficking charges that come before this court, given it is trafficking 'simpliciter'
140You pleaded early. You appear invested in your own reform for the sake of your children. There is, it is said, a real prospect that you are salvageable.
141What is urged is a disposition that allows for your immediate release. You have been in custody for 16 months, which is said to be sufficient time for you to be in custody on this matter, and it is not unrealistic for me to impose a period of imprisonment that allows you to be subject of an RRO. In determining whether a sentence in excess of three years is of appropriate severity, the Court could, and should if minded, fix a non-parole period with time served. I cannot accede to that submission.
142Mr Sprague submits a sentence of imprisonment involving a head sentence and non-parole period is the only appropriate disposition in all the circumstances of the case, including the nature and seriousness of the offending (this is a substantial amount of drugs - it is only 17 per cent shy of a marketable quantity threshold. It is more than 100 times more than the trafficable quantity), the importance of general deterrence and denunciation, and also specific deterrence which looms large in light of the significant relevant criminal history that precedes this offending. It is submitted that a sentence involving a release on a recognisance release is not open in all the circumstances. For the reasons advanced, I agree. I certainly do not believe you have served sufficient time in custody to date.
143I have attempted to provide a non-parole period in the not-too-distant future for you to give some hope for you to work towards. In the event that you are granted parole, the period I have set is hoped to be a meaningful one to assist you in consolidating some of the progress you have recently made towards your own reform.
SENTENCE
144I come now to the portion of these remarks where I formally indicate what the individual sentences are and how they interact with each other. Counsel, this is what I propose.
145I order that four months of the sentence imposed on Charge 2 be served cumulatively on the base sentence. That should bring about a total of three years and 10 months as the head sentence. My intention is that you serve at least two years and four months before you are eligible for parole, that represents a 60 per cent disparity between the head sentence and non-parole period. If that is my intention, Mr Sprague, would the best way to express it be as follows:
# Offence and Section Maximum Penalty 1 Traffic in a controlled drug s302.4(1) Criminal Code (Cth)
14 June 2023
Cocaine Pure weight: 209g10 years imprisonment 3 years 6 months
Base2 Contravene requirement in an order under 3LA of the Crimes Act 1914 (Cth) s3LA(5) Crimes Act 1914 (Cth)
14 June 20235 years imprisonment 12m
4m cumulative3 Possession of a drug of dependence
s73(1) Drugs, Poisons and Controlled Substances Act 1981
14 June 2023
Anabolic and androgenic steroidal agents
1 year imprisonment (if not related to trafficking) 4m concurrent s.16BA Possessing a controlled drug, namely cannabis, contrary to subsection 308.1(1) of the Criminal Code (Cth). 14 June 2023
TES: 3 years 10 months (46 months) NPP: 2 years 4 months (28 months) (approx. 60% disparity) PSD: 512 days 146The sentence of three years and six months commences first. Next, after the accused has served two years and 10 months on Charge 1, the sentence imposed on Charge 2 commences.
147There are no orders for cumulation with respect to Charge 3
148Thus it should bring about a total effective head sentence of three years and 10 months.
149Now would be a good time to say something encouraging, Mr Sprague.
150MR SPRAGUE: Thank you, Your Honour. Those figures accord with my understanding of what Your Honour intends. If it was expressed perhaps as the sentence on Charge 1 of three years and six months commences today. With the sentence on Charge 2 to commence two years and 10 months from today. I can indicate that the pre-sentence detention would still be then factored in.
151HIS HONOUR: Given that I propose to declare the 512 days under s16E2, as I understand it, I don't take it that to mean that I am artificially or improperly backdating the sentence.
152MR SPRAGUE: No, Your Honour, there's no difficulty with that. So even though the sentence on Charge 1 would be stated to commence today, the Corrections Services, the appropriate authorities will then implement that to take into account the time already served.
153HIS HONOUR: All right. Well those orders will be reflected in the orders that I produce, but that is my intention.
154The non-parole period, as I said, is two years four months which is an approximately 60 per cent disparity between head sentence and non-parole period.
155I will declare the 512 days already served in satisfaction of the sentence I have just imposed. [36]
[36]S,16E(2) Crimes Act 1914.
OTHER MATTERS
156Mr Bradshaw, to give you some sense of what your plea of guilty is worth, pursuant to s6AAA of the Sentencing Act (Vic) 1991, I would have sentenced you to a total effective sentence of five years and eight months, with a non-parole period of four years and four months, but for your plea..[37]
[37]Assuming that this provision applies, in accordance with Scerri v R [2010] VSCA 287 and cases that follow.
157There is a disposal order that from memory is not opposed, but I just want some clarity about that. It is disposal with respect to the drugs and the phones, is that correct? And the bags and the scales.
158MR SPRAGUE: Yes, Your Honour. I might seek final confirmation of that. I know we put on our submissions that there were no ancillary orders.
159HIS HONOUR: I have a note that draft ancillary orders will be filed in advance of the plea, or afterwards, but as I understood there was a disposal order sought, but we don't need to deal with that now.
160MR SPRAGUE: No, Your Honour. It's not sought, Your Honour. We ultimately said orders aren't required in the circumstances of the Commonwealth drug offences, it's not required.
161HIS HONOUR: All right, thanks very much. Can I thank all Counsel for the very professional way in which this matter was conducted and the high quality of the assistance, I really need it but I received, so thank you all.
162Mr Sprague, I will let you go to Judge Trapnell's court. Mr Halphen, Ms Drago and Mr Tai, would you like to remain on the link while we adjourn and you can debrief your client now? You probably have other conferences lined up, but if you want to we will extend you that courtesy of course.
163COUNSEL: We would appreciate that, Your Honour.
164HIS HONOUR: All right. Are there any other matters?
165COUNSEL: No, Your Honour.
166MR SPRAGUE: No, Your Honour.
167HIS HONOUR: Thanks very much.
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