Director of Public Prosecutions v Bruce
[2024] VCC 30
•31 January 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01535
Indictment No. M12561233
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY BRUCE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2024 | |
DATE OF SENTENCE: | 31 January 2024 | |
CASE MAY BE CITED AS: | DPP v BRUCE | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 30 | |
REASONS FOR SENTENCE
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Catchwords: Trafficking in commercial quantity of drug (1,4-Butanediol) - possess methamphetamine - Summary matters: Commit indictable offence on bail, breach conduct condition and deal with property suspected of being proceeds of crime - 36 years of age at time of offending in 2021 - Some criminal history - Early plea. - Worboyes v The Queen [2021] VSCA 169. Bugmy v The Queen [2013] HCA 37. R v Verdins [2007] VSCA 102, limb 5.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Teo (at Plea) Mr P. Teo and Ms C. Papaluca (at Sentence) | Office of Public Prosecutions |
| For the Accused | Mr D. Hunter | Dribbin & Brown |
HIS HONOUR:
1 Troy Bruce, you pleaded guilty yesterday to trafficking in a commercial quantity of a drug of dependence, namely 1,4-Butanediol as well as possession of a different drug of dependence, namely methylamphetamine. They were the two charges on the indictment filed in this court. You also pleaded guilty to three related summary matters, namely one charge of committing an indictable offence whilst on bail (Charge 3), breaching the conduct conditions of bail (Charge 5) and dealing with property suspected of being the proceeds of crime (Charge 4).
2 The summary filed on the plea sets out the relevant maximum penalties. I will apply the lesser maximum penalty for the possession of methylamphetamine charge given the small quantity and the Crown concession made on that score. So Charge 2 on the indictment has a 12 month maximum prison term, not the 5 years which would have applied had I not been satisfied on balance that the possession was not for any purpose related to trafficking in that drug.
3 You have admitted a prior criminal history of some relevance to my task.
4 The matter was opened to me yesterday by the prosecutor Mr Teo in accordance with a written amended summary dated 30 January 2024 which was marked as Exhibit A on the plea. Mr Hunter who appeared for you on the plea told me it was an agreed summary and for that reason, there really is no utility in my slavishly repeating it all in these, my reasons for sentence.
5 So what I will do is I will give only a very brief summary so that my reasons and my ultimate sentence might be comprehensible to anyone who happens to read them, but of course, I will sentence pursuant to that more detailed agreed statement.
6 In a nutshell, at about 7:55 a.m. on the morning in question in December 2021, you and another man were in a truck driven to a house in Sale. You were the driver; the truck was yours. You entered the house together. You were later seen carrying a black sports bag back into the house.
7 A short time later, Police attended at the house to execute a search warrant in relation to another matter, another target obviously enough, and whilst doing so, they located that bag which contained a number of bottles. Upon a later examination, those bottles were found to contain a commercial quantity of the drug 1,4-Butanediol. The total combined weight was 4,094 grams. Commercial quantity for that drug is 2 kilograms. Later DNA analysis linked you to those bottles.
8 I interpose that the basis of the trafficking charge is possession for sale.
9 You attempted to leave the house by the back door but were arrested. You were found to be in possession of a sum of cash, hence one of the Summary Charge 4. A small amount of ice was found in the truck hence Charge 2 on the indictment.
10 You were arrested at the scene and other than saying that the truck was yours, you elected to make a no comment interview, as was your right.
11 The summary sets out some of the chronology. You were charged and remanded in custody on that date I have mentioned, 10 December 2021 and in March 2022, you were bailed on these matters. That bail was later revoked in May 2023. In fact, as I understand it, you had been taken into custody by March of that year for fresh offending which ultimately was dealt with in the Latrobe Valley Magistrates Court in August 2023 by way of the imposition of a 60 day term of imprisonment.
12 Your counsel and Mr Teo expanded on the chronology by telling me of the existence of that subsequently imposed sentence.
13 I was also provided more detail about the nature of the matters that you were on bail for at the time you committed the matters that I am dealing with. Those other matters were themselves finalised by way of a fine imposed in early 2022 at the Sale Magistrates' Court. What it boils down to is this; You had been released on bail on about 24 November 2021 on a variety of offences including charges of possession of some 1,4-Butanediol, some ecstasy and also some cannabis. There were other charges as well. That bail undertaking had a condition that you not possess, use or traffick drugs of dependence. Within a few weeks of course, you were committing the matters that I am dealing with.
14 In relation to this matter, a brief contested committal was conducted on 26 August 2022 and you pleaded not guilty and you were then committed to this Court. There were then a number of procedural listings where your defence was spelt out by counsel who was then acting for you. It was not Mr Hunter. A defence response denying any possession or possession for sale and hence trafficking was filed in October of that same year.
15 The matter settled in May of last year and the matter was then listed for a plea to be conducted in August of last year. That date was vacated as you hoped to be considered for a drug and alcohol treatment order in the Drug and Alcohol Court. That did not eventuate and the plea was listed to proceed yesterday and it did.
16 So much then for my brief summary of the agreed summary in this matter. I will, as I say, sentence pursuant to the more detailed agreed amended summary dated 30 January 2024.
17 Charge 1 is what is described in the Sentencing Act as a Category 2 offence where there is a requirement to impose a custodial term and not one in combination with a Community Corrections Order, unless certain stated exceptions arise. Your counsel was not suggesting that any of those exceptions arose here. Quite the opposite. He said that they did not arise. I will say no more about those relatively complex provisions as it was correctly accepted that the only appropriate outcome here was a head sentence with a non-parole period.
In mitigation
18 Mr Hunter conducted the plea in mitigation on your behalf yesterday and relied upon a written outline dated 22 January 2024. He also relied upon a report from a forensic psychologist Ms Laura Fleming. It is not my intention to insert slabs of that report into these my reasons. I see no point in doing so, though I will act on that report. He also filed some work receipts that evidenced the work that you had been doing in the lead into the offending, as well as some work that you had done after you had been bailed in March 2022.
19 Mr Hunter informed me of your personal, educational, employment, drug use, relationship and mental health history. He also told me about some subsequently dealt with matters and that relatively recent assault that had been committed upon you.
20 Your counsel made some submissions to the court as to the level of objective seriousness of the offending, the relevant sentencing purposes and also as to your prospects of rehabilitation. He placed before the Court a handful of decisions from the Court of Appeal though the Directors’ Appeal of Holder[1] was not being relied upon as being in any way comparable.
[1]DPP v Holder [2014] VSCA 61
21 He conceded the seriousness of Charge 1 on the indictment and also the relevance of your criminal history though he highlighted that there were no prior convictions for trafficking in that history.
22 In what was a realistic and sensible plea conducted on your behalf, he relied upon the following matters in mitigation:
· Your relatively early guilty plea with heightened benefit owing to the global pandemic backlog, relying upon the case of Worboyes[2] and other cases since;
· The application of one of the principles from the case of Verdins[3] (limb 5);
· Your disadvantaged background and the principles from Bugmy.[4]
[2]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)
[3]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)
[4]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
23 He referred me to the Sentencing Advisory Council online sentencing statistics for the most serious charge being the commercial quantity trafficking. Indeed, I did not need to, but I marked that as an exhibit on the proceedings (Exhibit 3).
24 He conceded that a term of imprisonment was required here with a head sentence of a dimension requiring the fixing of a non-parole period but he argued on your behalf that there could still be a decent gap between the head sentence and the non-parole period.
Prosecution
25 The prosecutor Mr Teo made some brief sentencing submissions yesterday which were really quite uncontroversial. He conceded that your plea was relatively early, that Worboyes had a role to play and that if the Court accepted your account of your background, that the principles from Bugmy would also have some role to play in a general sense. The prosecutor pointed to the obvious aggravating feature of being on bail at the time and also the unfortunate chronology leading into this offending and your decision then to reoffend, even when bailed on these matters. The Director was calling for a head sentence with a non-parole period but so much had been readily conceded already by your own counsel.
26 I will come back a bit later to consider the various submissions made by the parties.
Background
27I will turn firstly though to your background. You were born in July 1985 and you are now 38 years of age. There is much detail as to your background set out in that expert report as well as to a lesser degree in the written outline of submissions placed before me. Your counsel of course was relying upon your disadvantaged background.
28The Bugmy and Herrmann[5] line of authority that you heard mentioned yesterday has had a very significant resurgence in recent times, in my observation at least. Over the last 9 months, very few pleas indeed have been conducted before me where it has not been mentioned and relied upon and despite statements in a number of cases as to the need for an appropriate evidentiary foundation (see for instance in Herrmann), it is almost universally based on self-report to counsel, or self-report to a psychologist, as is the position here.
[5]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
29Ultimately though, having considered the matter, I am prepared to act on the account of your personal and family background as was placed before me. For that reason I see no need then to restate it all. It is obvious, it would be obvious to ‘blind Freddy’, that your background was hardly ideal. That is an understatement.
30You were one of four children, with an older brother and two younger sisters and violence was common within the home, both targeting you and your mother. There was instability of housing and you were exposed to drug taking and addiction at an early age. Drugs were seemingly condoned. So too even other criminal conduct.
31You attended a number of primary schools and there was some bullying at school. You left school in Year 8. You moved out of home at the age of 18 and worked in a variety of occupations that are spelt out at paragraph 7 of the Outline (Exhibit 1). I see no need to descend to that detail now. Most recently you had been working as a tree-lopper and hence those receipts which were marked as Exhibit 4 on the plea. I was told that COVID had interrupted that business in the relevant time frame.
32I note the reference in the expert report to a number of past intimate relationships which have produced 6 children and Mr Hunter expanded on that in the course of the oral presentation. I was told that you had been grappling with the loss from your home of two of your teenage daughters who had otherwise been living there.
33You see the youngest child from your most recent relationship. That is a 10-month-old son. You are still in a relationship with the mother (Jamie Wilson) and though prison is placing an understandable strain on that relationship, you hope that that relationship continues. She obviously has got an interest in you and she has joined the hearing today as she did yesterday. You still have hopes for the future. You have not given up on yourself and nor should you. You hope to resume your business upon your ultimate release and to strike free of drug use and your criminal associates.
34The outline sets out the fact of an assault upon you. I was told you did not seek any medical treatment. The outline also sets out some of the subsequently dealt with matters.
35Though there is some duplication, you have a long enough criminal history and it is of some relevance to my task. I see no need to set out the full details of your criminal history in these, my reasons. The document itself does that. As you know you have a long enough list of convictions for many styles of offending, some of it actually pretty serious. There are driving, weapons, family violence, drug, dishonesty and violence prior matters.
36You have been sent to prison on a number of occasions including sentences of a dimension where a non-parole period had been fixed. You have also been given opportunities by way of community based dispositions, such as a community corrections order and you have breached at least two of those. You have plainly not taken your chances when they have been offered to you.
37 I make it plain to you, as I hope I did yesterday, that you do not fall to be sentenced a second time for any of your past crimes. You received those past sentences and you served them. Your past criminal history does not in any way aggravate this offending. Nor for that matter does any subsequently dealt with matter that I have been told about.
38 I must pass proportionate sentences for this offending. Obviously enough though, I am sure you will understand this, I have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. That risk is high enough according to Ms Fleming.
39 Quite aside from the past criminal history, the chronology is hardly that encouraging; being placed on bail for earlier drug offences in November 2021 with a specific condition not to use, possess or traffick drugs and within weeks, you were committing the serious crime represented by Charge 1 on the indictment and then, when bailed again in March 2022, you were committing fresh offences the following year. It is obvious that I must strive to deter you from further offending.
40 Now I have set out only some of the detail of your background placed before me. As I have said there is much greater detail in the expert report. Your counsel was relying upon the principles derived from Bugmy, which have been restated in many cases since, including the case of Herrmann in our Court of Appeal. He was relying upon those principles in the general fashion described in the case law. Now the application of these principles does not depend upon proof of a causal connection and that sort of thing is actually very difficult to establish.
41 I am prepared to find that your background was unenviable. I am satisfied that there was a level of dysfunction and instability in your early life. You were exposed to violence and you had the absence of positive role models and plenty of bad role models in your developmental years. Drugs and violence were, to an extent, just a normal part of life. It is plain enough that your early life did not prepare you for adult life at all and really, it is little wonder that you have had what might be described as a faltering trajectory in your own life. Little wonder you have turned to drugs and to crime. Ms Fleming speaks of some of these matters in her report. I believe that yours was an unenviable background. I give it full weight in the way in which that term is employed in the case law including Bugmy, Herrmann and Sabbatucci[6] and more recently discussed in cases such as Newton[7] and Dhal.[8] I take your background into account as far as I am able to including as giving rise to some reduction in your culpability.
[6]Sabbatucci v The Queen [2021] VSCA 340
[7]Newton (a pseudonym) v The King [2023] VSCA 22
[8]Dhal v The King [2023] VSCA 289
Guilty plea
42 I will turn now then to the other matters raised on the plea, and the first of those matters is your guilty plea. It was a plea at a reasonably early time. There was a brief committal and earlier procedural mentions in this court suggested that you were denying any role or knowledge in relation to the drugs. A defence response was filed that actually confirmed that stance. It was, of course, your right to proceed in that way. You made it plain yesterday that there was at some point a change in practitioners and it seems clear then that at one point you saw sense and decided to plead guilty. This was still an early plea. It is just not one made at the very earliest time and that much was conceded by your counsel.
43 You have taken this early responsibility for your crimes.
44 As a result of your guilty plea, the time, the cost and the effort of a trial up in this Court has all been avoided. All of the witnesses have been spared the experience of giving evidence in this Court and, as I have said, it was only a very brief single police witness committal in the lower court that ran for only a handful of minutes.
45 You have facilitated the course of justice and you must be rewarded for doing so.
46 This matter settled in May of last year at a stage when the backlog in this Court was still in existence. We were very much in the process of clearing it out by that point.
47 I believe we are surely close to the point in time now, if not at that point, where any future decision to plead guilty will not be met by any heightened sentencing benefit derived from the Worboyes authority. That is because not only have we now moved beyond the global pandemic, but the pandemic backlog in this Court has now actually been cleared. We are operating in this Court at pre-pandemic levels as the Chief Judge announced to the profession late last year. However, this case settled at that earlier point in time, which was well before that announcement and it is appropriate to give heightened benefit to the fact of the guilty plea in line with the principles from Worboyes. I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that decision.
48 I take these various matters into account in mitigation.
Remorse
49 Your counsel was not arguing that there was any remorse on display other than what might be implied from your guilty plea. He did not point to any other direct evidence of remorse. You have pleaded guilty at an early enough opportunity. A guilty plea is usually though not always indicative of some remorse.
50 I will find some limited remorse implied from your guilty plea and I take that into account in your favour as well.
Verdins
51 Mr Hunter argued that the 5th limb from the case of Verdins had some ‘modest’ application here, as he put it. That case which you heard discussed, deals with the impact upon the sentencing process of mental health or psychological conditions existing at the time of offence or sentence or both. That is, I should say, a gross simplification of that case law, but it is sufficient for present purposes. Mr Hunter explicitly disavowed any reliance on the first, second, third, fourth, and ultimately the sixth limbs of that decision. He was not suggesting that there was any Verdins basis to reduce your culpability or to reduce the weight to be given to general and specific deterrence. However, he pointed to the broad statement in the expert report as to increased burden flowing from your Post Traumatic Stress Disorder. It is a pretty unsatisfactory report on this topic in that it does not go into much detail as to the manner in which your burden of custody will be increased. Why and how. Rather the author was pointing to the global impact upon you of what she said would be the likely absence of appropriate treatment, including for conditions for which you have not even been diagnosed. It is also a dated report and it does not speak of the reality of your present position or how things have played out since she saw you last year or of the treatment which has occurred, if any. Your counsel recognised the issues with the report. I have considered the matter overnight and I am prepared to accept that you do suffer from that condition and I will give some modest weight to the 5th limb of that decision. It is not a large matter in my task. Nor did Mr Hunter submit that it would be.
52 Mr Hunter placed no submission before me as to any past or future increased custodial burden arising from the response to COVID-19. I asked questions on that topic at the tail end of the plea, as I really wanted to know whether it was in any way being relied upon. The short answer is that it was, but only for a very limited period indeed. That was the period upon your being arrested and received in prison in December 2021 up until being bailed in March of the following year. It was not suggested that the later period of your remand on this matter from May 2023 was impacted by COVID. So I take into account the increased burden in that first period. There would have been COVID driven impacts affecting that period of incarceration. That period would have involved a heightened prison burden given that there would have been the need for quarantine and there was for most of that period the suspension of visits as well as the impact upon the availability of the full range of courses and programs. The impacts of the pandemic upon prisoners has of course eased now, but I do pay regard to that earlier period when that was not the position.
Rehabilitation
53 I turn then to your prospects of rehabilitation. You present as having a high enough risk of reoffence. That much is plain from the report of Ms Fleming. I have not spent enormous time dealing with that report in my reasons. I said earlier that I would not. I take it into account in a general manner. I also have had regard to it in reaching the Bugmy findings that I have pronounced and in dealing with the Verdins submission. The report usefully sets out your background and your treatment needs and risks. It sets out the various tests administered and her opinions. I accept the report. I accept that COVID‑19 had some impact upon you in the relevant time frame, as it did for most. I accept that you had been working and that that all came to an end. That you then had some issues thrown up by losing contact with your two teenage daughters. You probably felt a bit lonely and a bit hopeless and you relapsed into old ways such as drug use and criminal association. Ms Fleming speaks of this phase of your life.
54 Your counsel accepts that it is hard to be optimistic as to your future prospects. You were engaged in serious offending here whilst on bail. You were no silly teenager. You were a mature adult. You must have known how serious this crime was and in saying that of course, I am referring to Charge 1 on the indictment, the commercial quantity trafficking. You have not complied with a variety of past court orders. You have not been deterred by past sentences including some involving prison terms of some duration. You were then bailed in March 2022 and offended again the following year.
55 You will, I am sure, be deterred to a degree by the sentence I will soon impose, both the portion you have served already and that which lies ahead.
56 Your counsel was submitting that I should find that you had some prospects of rehabilitation. Well, I certainly will not write you off. I am not prepared to say that you have no prospects of rehabilitation at all but I have to be realistic and informed by what I know about you.
57 Those prospects are not particularly strong in my view and the risk of future offending is high enough. I can only really be quite guarded. I am prepared to accept the submission that you do have some prospects of rehabilitation. They are not illusory. Those prospects will increase very significantly if you can actually abstain from illegal drug use in the future. If you cannot do that and if you cannot shake free from criminal associations, your prospects will be very gloomy indeed.
The Offences
58 The agreed summary describes your offending and I do not see the need to say much more about it.
59 I must pay regard to the nature and gravity of the offences before the court. It is accepted by your counsel that the conduct constituted by Charge 1 was serious offending. Your counsel made some submissions about the quantity of drugs and how he suggested it was at the lower end of the commercial quantity threshold. The fact is it was still two times the commercial quantity applicable to the drug 1,4-Butanediol. I will deal with you for the crime you have committed, not for a more serious example of it. You, like most traffickers, were simply taking a calculated risk. You possessed the 1,4-Butanediol for sale. It did not just land in your hands. This was a sizeable enough quantity of that drug. You were on bail at the time with a specific condition not to use, possess or traffick drugs. The other offending I am dealing with both on the indictment and the summary matters, is obviously far less serious. I will scarcely mention it again.
Purposes
60 I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose and of course, I must not ignore it. I have already pronounced my views as to those prospects. They are not at all strong.
61 There are though many other sentencing purposes that I must give weight to and that is as a result of the seriousness of the offending the subject of Charge 1.
62 I am required to punish you justly and proportionately and punishment is an important sentencing purpose in this sort of case.
63 I must also denounce your conduct. Again, that is of importance.
64 Community protection is also of some importance. That is surely obvious enough.
65 Deterrence is also important in this sort of case. There is the need for this Court to seek to deter you as well as others from offending in this way in the future.
66 Specific deterrence relates to the need to deter you. That is obviously important enough here. Past sentences have not deterred you. Nor is the chronology pleasing, offending whilst on bail, then offending again once bailed on these matters. I must try to deter you.
67 General deterrence is also an important enough purpose of sentencing in this sort of case. That relates to the need to deter not you but others.
68 Illegal drugs have had devastating impacts on so many in our community. You would know that obviously enough. They cause untold misery to the many who use them and to the families of those who use them. They really do destroy or alter lives very significantly. Those who make the decision to traffick in any drugs at the level that you did cannot expect much by way of leniency.
69 People such as you who traffick in drugs at the level you did are always taking a calculated risk. They hope that the potential rewards on offer will justify taking that risk. They hope not to be caught. I will say more about the more limited financial rewards on offer in relation to 1,4-Butanediol and the way that that affects the weight given to the various purposes of sentencing including general deterrence. General deterrence is still an important purpose of sentencing here.
70 The Courts must pass sentences which would cause those considering committing this sort of crime in the future to reflect on and to reconsider their position. We as Judges, must try to neutralise the lure of the financial gain, whatever that gain might be, by placing into the mind of potential likeminded future offenders the risk of arrest, of prosecution and the imposition of a sizable prison term. We want future likeminded offenders to actually pause for thought and to reconsider their position.
71 I have to pay regard to the maximum penalty for each offence. The commercial quantity trafficking charge has a 25 year maximum term. It is an inherently serious offence.
72 I have to pay regard to current sentencing practices. That is not a single controlling factor at all.
73 I have looked at the Sentencing Advisory Council Snapshot No. 268 from 2022 dealing with the commercial quantity offence as well as the more up to date statistical material provided by your counsel, which was marked as an exhibit.
74 I have looked at the relevant portions of the Judicial College of Victoria Sentencing Manual but in doing so, for the reasons I will advance shortly, focussed on cases dealing with this drug or other lower value ‘related’ drugs such as GHB or GBL.
75 I note the reference in that Judicial College of Victoria material for the need for caution in paying regard to those past sentences given the Court of Appeal’s pronouncements in the case of Gregory[9] as to the inadequacy of current sentencing practices for some examples of commercial quantity trafficking. I am not suggesting that you fall into those categories spelt out in Gregory, by the way.
[9]Gregory (a pseudonym) v The Queen [2017] VSCA 151 (‘Gregory’)
76 Sentencing statistics do not inform my task in the sense that they do not provide the appropriate sentence in this case. They are of very limited, if any, use. Nor do other sentences imposed upon other offenders for other crimes operate as though they are ‘precedents’ to be followed. They are not precedents. They are merely examples of other sentences imposed on other offenders for other crimes. There is no such thing as one correct sentence.
77 I am exercising a sentencing discretion in your case. I am sentencing you for your crimes. That is not a mathematical or statistical task or one where the outcome is dictated by what has happened in other cases or by average outcomes or trends as disclosed in the statistics.
78 This is a quantitative based not a qualitative based regime. It is no part of my task to consider the relative harmfulness of the given drug. The relevant legislation in this area, namely the Drugs, Poisons and Controlled Substances Act 1981, sets out various thresholds in terms of quantities. These things are set out in the Schedule. Those thresholds have been set at differing levels for various drugs. Charge 1 that I am dealing with relates to a quantity of the drug 1,4-Butanediol.
79 I am dealing with a commercial quantity trafficking but one related to a far lesser value drug than the powder drugs such as for instance ‘ice’, cocaine and heroin. I have looked at many of the other cases involving sentencing for this type of drug or related drugs such as GHB or GBL. Maxwell’s case a decision of our Court of Appeal has some important principles which I apply to my task.[10] Those things are set out at paragraphs 27-41 of the decision. It also had a table of cases. Now that case though dealing with importation, is still relevant to my task. It is a decision that explains in some level why consistently, there have been less severe sentences imposed for this type of drug (1,4-Butanediol or its ‘cousins’ GHB or GBL). It comes down to the enormous differential in reward and how that impacts on the weight to be given to the various purposes of sentencing. Maxwell’s case has been considered in a number of other cases such as Ellis[11], DPP v Fatho[12], Sharbell[13], as well as Gayed[14]. That later case also considered the impact of Dalgleish upon the earlier decision of Gregory. The case of Quah[15] also considered Gregory and Dalgleish[16].
[10] DPP (Cth) v Maxwell [2013] VSCA 50 (‘Maxwell’) at [27] to [41]
[11]Ellis v The Queen [2018] VSCA 221
[12]DPP v Fatho [2019] VSCA 311
[13]Sharbell v The Queen [2018] VSCA 324
[14]Gayed v the Queen [2021] VSCA 141
[15]Quah v The Queen [2021] VSCA 164
[16]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
80 These decisions dealing with GHB, GBL or 1,4-Butanediol explain the reasons for the lesser penalties being imposed by the courts. It is not a matter of the courts making judgements about the level of dangerousness of the drug. That sort of thing is prohibited by the reasoning in the case of Pidoto.[17] What it amounts to is that the reward differentials explain the reasons why there can be some reduction in the weight that can be given to specific and general deterrence in this sort of case. One of the reasons general deterrence is usually so important is because of the need to neutralise the lure to likeminded offenders of the potential large financial rewards on offer. Sometime there are massive rewards. Those massive rewards really do not exist for 1,4-Butanediol as they do for some of the powder drugs which are worth a fortune and can yield a fortune. There is then also some reduction in culpability as well. There is though I must make plain, nothing in that line of authority suggesting that trafficking such a substance in a commercial quantity is anything other than a serious crime. What the cases spell out is the reasons why sentences were consistently lower. I apply those principles to my task.
[17]R v Pidoto and O'Dea [2006] VSCA 185
81 Now, here, as I have said, the weight of the particular drug is a matter of significance. It is a quantitative based regime and the weight is a fixed matter. Often weight is, as your counsel correctly says, the only matter of distinction between different examples of the offence.
82 The quantity of drug is undoubtedly an important consideration, but it is by no means the only or even the most important matter. In possessing for sale a touch over 4 kilograms of this drug, you had just over two times the commercial quantity of that drug. In that sense, you did not just ‘tip over’ the commercial quantity threshold. Though you were comfortably above the commercial quantity, the next threshold, large commercial quantity, was a long way off, with a threshold of 20 kilograms.
83 The quantity of ice was very small indeed and pales almost into insignificance and as I have said, I am satisfied you have discharged your ‘Pantorno’ burden as it is often referred to, in relation to that drug, hence the lower penalty provision is operative for Charge 2.
84 What were you actually doing though? As to the commercial quantity trafficking, I have been told virtually nothing about your actual conduct. There is no police interview and there is scarcely a reference to it in the expert report. I really know very little about the nature of your conduct, of any structure or hierarchy, if any. Were you in this on your own? Were you acting in company with others? Subservient to others or acting with equals? Your reference to Ms Fleming at paragraph 41 of loss of income to others being the reason for the assault upon you suggests there was some structure or at least some connection to others and a large enough financial stake to justify such conduct, but who really knows? Your role was obviously important, whatever the structure or hierarchy, that much is plain.
85 You knew what you were doing. You knew the risks. You were a mature man. There is not that reduced culpability as there sometimes is, for instance, with someone with a sizeable mental health issue or an intellectual disability or even someone with youth on their side. There is the reduction arising from my Bugmy conclusions and those spoken of in those 1,4-Butanediol cases that I have listed. As to your financial position, really very little information was placed before me. I do accept that COVID had an impact upon your business and you were probably not in great shape. Your conduct was probably a mix of need and greed. Cutting corners but not with an expectation of raking in a fortune. That is just not the nature of this drug at the quantity that you were trafficking.
86 Prison is always a disposition of last resort. Your counsel conceded the inevitability of that outcome and one requiring the fixing of a non-parole period. That was a sensible concession to have made.
87 He submitted that there should be a decent gap between the head sentence and the non-parole period, that there was still some hope for you in the future.
88 I am not able to take into account the possibility of your early release on parole. I am required by law in this case to fix a non-parole period and that is owing to the size of the head sentence that I will soon pronounce. The Adult Parole Board will make the decision as to whether you can be released on parole. That has nothing to do with me. Indeed I must have no regard to that possibility.
Totality
89 I take into account the principle of totality of sentence.
90 I have to consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. I have here 5 charges to deal with. The most serious offence by far of course is the commercial quantity trafficking charge, Charge 1 on the indictment. The other charges are obviously far less serious. Charge 2 on the indictment relates to a different drug but on the same day and the quantity is very small. The summary offences involve two Bail Act offences but they connect up to the commission by you of the most serious of the indictment charges. That is, by committing that indictable offence whilst on bail and breaching the conduct condition by committing that offence. The third summary offence relates to a relatively small amount of money suspected of being the proceeds of crime. As I say, they are far plainly far less serious than Charge 1 and your counsel was arguing that there should be a degree of concurrency in this case. I have in fact considered if there should be any cumulation.
91 I have engaged in a last look at the sentences imposed by this Court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you. A sizeable prison term is called for here. That is simply inevitable, owing to the seriousness of your offending the subject of Charge 1 on the indictment. That is conceded. I should also say that in considering and applying the principle of totality, I have regard in a general way to that subsequent sentence I was told about which was imposed upon you in August 2023.
Disposal & Forfeiture Orders
92 There were a couple of ancillary orders that are applied for here. You consent to each of them and I have signed those orders and pronounce them now in an abbreviated form. There is an application pursuant to s33 of the Confiscations Act 1997 for forfeiture to the Minister of the cash that was seized from you. It is consented to. I am satisfied the criteria for the making of that order is made out and I order pursuant to that provision that the property referred to in the Schedule, that cash, be forfeited to the Minister.
93 Secondly there is an application for disposal order under the provisions of s78(1) of the Confiscations Act relating to the various bits and pieces that are on the Schedule. There is no opposition to the making of this order. I am satisfied that the preconditions for the making of the order are made out. I order pursuant to s78 of the Act the forfeiture to the State of that property and I direct it be handled in the manner contemplated by the signed order. So I have signed that as well.
94 I am sorry to have taken so long to get to this point.
Sentence
I will have you just stand up briefly then, Mr Bruce, and I will finalise the matter.
95 On Charge 1, trafficking in a commercial quantity of 1,4-Butanediol, you are convicted and sentenced to 45 months or 3 years 9 months imprisonment. That will be the base sentence.
96 On Charge 2, I just do not believe that a prison sentence is even warranted for that charge relating as it does to a small amount of methylamphetamine with the lower penalty provision in play. I convict and fine you the sum of $300 on Charge 2.
Summary matters
97 On the related summary matters, on the two Bail Act matters, I believe an aggregate prison term is both open and appropriate. I convict and sentence you to an aggregate period of 7 days' imprisonment on summary Charges 3 and 5.
98 On the dealing with property suspected of being the proceeds of crime charge (Charge 4), you are convicted and sentenced to 7 days' imprisonment.
Concurrency
99 In fact what I am going to do is I am going to direct that all these prison sentences will be served concurrently with each other and with the base sentence imposed on Charge 1. I am then to that extent otherwise ordering concurrency pursuant to s16(3C) of the Sentencing Act. I have after all treated the fact of your being on bail as a matter of some aggravation when dealing with Charge 1. To then cumulate the Bail Act sentences might reek of double punishment which I must strive to avoid.
Total Effective Sentence
100 It follows that the total effective sentence is 45 months or 3 years 9 months.
Non-parole period
101 I fix a period of 2 years 3 months or 27 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
102 You have already served 350 days of this sentence by way of pre‑sentence detention and that period is declared pursuant to s18 of the Sentencing Act and entered into the records of the court.
Section 6AAA.
103 I have told you that I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to 5 and a half years' imprisonment. I would have fixed a non‑parole period in that setting of 4 years.
104 Grab a seat then for a moment. I will just see if there anything else?
105 From your perspective, Mr Hunter, anything else from your perspective?
106 MR HUNTER: No, Your Honour, thank you.
107 HIS HONOUR: Ms Papaluca or Mr Teo, anything else?
108 MS PAPALUCA: No, Your Honour.
109 HIS HONOUR: All right. Will you go down and see your client today, Mr Hunter or not?
110 MR HUNTER: Your Honour, my instructor will be in contact with Mr Bruce today.
111 HIS HONOUR: So someone will be in touch with him to discuss what has occurred here today and his rights in relation to it then?
112 MR HUNTER: Yes, Your Honour.
113 HIS HONOUR: Well look just remain seated then, Mr Bruce. You have heard that. Your legal team will be in touch with you in due course to discuss what's occurred and your rights in relation to the sentence that I have imposed upon you, so they'll be in touch no doubt sooner rather than later.
114 I will revise these remarks and get them out to the parties as soon as they come back to me. So, nothing else then from either of you?
115 MR HUNTER: No, thank you.
116 HIS HONOUR: That completes the matter then. So Mr Bruce can be removed now then, thank you.
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