Director of Public Prosecutions v Carabott
[2024] VCC 1619
•16 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 24-00268
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW SCOTT CARABOTT |
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JUDGE: | HER HONOUR JUDGE CHAMBERS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 June, 23 July, 16 September & 16 October 2024 |
DATE OF SENTENCE: | 16 October 2024 |
CASE MAY BE CITED AS: | DPP v Carabott |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1619 |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentence
Catchwords: Guilty plea – trafficking in a drug of dependence - possession of a substance, material, documents or equipment for trafficking in a drug of dependence - cultivation of a narcotic plant - possession of a drug of dependence - possession of a precursor chemical - attempt to possess a drug of dependence - attempt to traffick a drug of dependence – drug addiction – serious example of possession of a substance, material, documents or equipment for trafficking in a drug of dependence - rolled up charges – mid to upper range of offending – dependent child with non-verbal autism – no criminal history – professional background – good character – shorter non-parole period fixed due to exceptional family hardship – general deterrence and denunciation
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins [2007] VSCA 62; Markovic v The Queen [2010] VSCA 105; R v Esposito [2009] VSCA 277; DPP v Gerrard [2011] VSCA 200; Borg v the Queen [2020] VSCA 91; DPP v Canavan [2016] VCC 1112; DPP v McCarthy [2020] VCC 1250.
Sentence:Total effective sentence of three years, six months' imprisonment with a non-parole period of one year, nine months' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
For the Accused | Timothy Sullivan (19 June 2024, 23 July 2024) Mr M. Weinman (16 September 2024, 16 October 2024) | May Lawyers Tony Danos Solicitors |
HER HONOUR:
1Matthew Carabott, you have pleaded guilty to the following offences:
(a)trafficking in a drug of dependence, namely alprazolam, contrary to s71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act'), the maximum penalty for which is 15 years' imprisonment (Charge 1);
(b)possession of substances, materials, documents and equipment for trafficking in a drug of dependence contrary to s 71A of the Act, the maximum penalty for which is 10 years' imprisonment (Charge 2);
(c)cultivation of a narcotic plant, namely cannabis, contrary to s 72B of the Act, the maximum penalty for which is 15 years' imprisonment (Charge 3);
(d)possession of a drug of dependence contrary to s 73(1) of the Act, the maximum penalty for which, in the circumstances of this case, is five years' imprisonment (Charges 4, 5 and 9);
(e)possession of a precursor chemical contrary to s 71D of the Act, the maximum penalty for which is five years' imprisonment (Charges 6, 7 and 8);
(f)attempt to possess a drug of dependence, namely pentylone, contrary to s 73(1) of the Act, the maximum penalty for which is either 18 penalty units and/or or six months' imprisonment, or two years' imprisonment (Charge 10); and
(g)attempt to traffic a drug of dependence, namely cocaine, contrary to s 71AC(1) of the Act, the maximum penalty for which is 10 years' imprisonment (Charge 11).
2The circumstances giving rise to the charge of trafficking in alprazolam occurred on 27 August 2021. The charge of attempting to possess pentylone occurred on 22 August 2022. The remaining charges relate to offending on a single day, namely 2 September 2022.
3You were born in August 1983 and were 39 years old at the time of your offending. You have a degree in biological science with honours in biochemistry and botany and have worked as an agronomist for much of your life. At the time of the offending, you lived in Harcourt with your wife and son.
4You have no prior criminal convictions.
Circumstances of the offending
5The circumstances of your offending are detailed in the summary of prosecution opening for plea dated 21 February 2023, which is the agreed basis upon which you are to be sentenced.
6On 8 August 2022, the police seized two parcels from the Harcourt Post Office that were addressed to 'J Brindlestone' at your Harcourt address. You attended the post office that afternoon and enquired after the parcels addressed to 'Brindlestone'. The staff at the post office told you the parcels had been seized. You replied that you would have to 'speak to [my] colleague' and left. The parcels contained a 1-litre bottle of an unknown substance and 1 kilogram of an unknown substance.
7On 22 August 2022, the police attended the Harcourt Post Office and seized two further parcels addressed to 'J Brindlestone' at your Harcourt address. The parcels contained six snaplock bags of unknown substances. Subsequent analysis detected synthetic pentylone, being 39.2 grams of dimethypentylone. These are the circumstances giving rise to Charge 10, attempt to possess pentylone, a synthetic form of ecstasy.
8Following the seizure of these items, the police executed a search warrant at your Harcourt address on 2 September 2022.
9On arrival, the police observed cannabis being grown in a hydroponic set-up in a spare room where a large glass condenser full of liquid and various snaplock bags of powders and crystals were also located. Ten plants and plant materials were seized by the police, which were subsequently examined by a forensic botanist, who confirmed that the plants and material were cannabis L, weighing a total of 2.2534 kilograms. A trafficable quantity of cannabis L is either 250 grams or 10 plants. These are the circumstances giving rise to Charge 3, cultivation of cannabis.
10After the premises were deemed safe to search, the police returned to your address on 3 September 2022, where they located and seized the following substances:
· a metal drum with a tap, labelled 'Sydney Solvents Methylene-Chloride 20L', containing dichloromethane;
· a plastic carboy labelled 'Sydney Solvents ISO Propyl Alcohol 20L' and another carboy labelled 'Sydney Solvents Hydrochloric Acid', both containing hydrochloric acid;
· a plastic container holding 4,342 grams ammonia;
· a plastic container labelled 'Paramount Chemicals Toluene', containing toluene;
· a plastic carboy labelled 'Sydney Solvents ISO Propyl Alcohol 20L' and another carboy labelled 'Sydney Solvents ISO Propyl', both containing isopropanol;
· a plastic container labelled 'Now Gaba 170g', containing 70.4 grams of
4-aminobutanoic acid or GABA;· a plastic container labelled 'Sydney Solvents caustic soda 5kg' and another container labelled 'Bondall caustic soda 1kg', both containing sodium hydroxide;
· a plastic container holding sulphur powder;
· a plastic container labelled 'Paramount Chemicals, Zinc Metal Powder 500g', containing zinc;
· bags containing 100 grams, 101.1 grams and 1,007.9 grams of
3,4,5-trimehoxybenzaldehyde;· plastic containers and a sealed bag holding activated charcoal;
· a sachet labelled 'Chemical House Ammonium Acetate 200gram', containing sodium acetate;
· a sealed bag containing sodium carbonate;
· two plastic containers holding a total of 621.1 grams of 4-aminobutanoic acid;
· two plastic bottles holding 100 grams each of 2,5-dimethoxybenzaldehyde;
· three plastic containers holding sodium nitrate;
· a glass bottle labelled 'Aus Chem Course Formaldehyde 500ml', holding 545 grams formaldehyde;
· a plastic container labelled 'Sodium Nitrate 5kg', containing sodium nitrate;
· three class bottles holding 73 grams of safrole;
· a plastic vial containing 9 grams of a substance containing
4-hydroxybutanoic acid; and· various assorted glassware and lab materials.
11Investigators also located scientific literature on a laptop and iPhone seized from the address as well as physical notes written by you.
12The materials seized were examined by a forensic officer, who concluded
that the scientific glassware, equipment, chemicals and documentation
would be sufficient to manufacture GBL from the GABA; sodium
gamma-hydroxybutyrate (NaGHB) from the GBL; and
3,4,5-trimethoxyphenethylamine (also known as mescaline).13During the search, police also located a Snap Lock bag of flualprazolam powder and a glass vial containing 8 grams of a substance containing an analogue of methcathinone. The forensic officer concluded that these materials, together with the relevant literature located on your laptop and iPhone, would enable you to manufacture 4-methylmethcathinone (or 4-MMC), a synthetic stimulant, provided that another chemical was added.
14The scientific journals, Internet articles and documents found on discs seized from your address described the synthesis or extraction of a number of different controlled substances, including methylamphetamine, alprazolam, opiates, fentanyl, N,N-dimethyltryptamine and methylenedioxyamphetamines.
15The combination of chemical substances, scientific glassware, documents and equipment possessed by you on 2 September 2022, with the intention of using them to traffic in a drug of dependence, is the subject of rolled-up Charge 2.
16During the search of your house, the police also located a range of drugs of dependence, listed in Appendix A to this decision, including 113.9 grams of pentylone, 331.3 grams of harmine, 0.4 grams of heroin (64 per cent pure) and 9 grams of GHB that are the subject of rolled-up Charge 4, possession of a drug of dependence.
17The police also located 150 tabs of LSD separated into three cards (Charge 5, possession of a drug of dependence); 2,020.3 grams of ammonium chloride in two bottles (Charge 6, possession of a precursor chemical); two containers of methylammonium salts totalling 1,007.0 grams (Charge 7, possession of a precursor chemical); two bottles of nitromethane totalling 11.639 grams (Charge 8, possession of a precursor chemical) and a snaplock bag containing 29.8 grams of ketamine (Charge 9, possession of a drug of dependence).
18Investigators analysed messages found on your laptop, including a number of online messages to various associates indicating a familiarity with the processes and materials needed to manufacture mescaline
(3,4,5-trimethoxyphenethylamine), including:· 'Now sorted with pre cur to produce 1kg mesc. I think I am sorted';
· 'Mesc is an eight-hour procedure using all easy chemicals except 3,4,5 trimethoxy phenethylamine of which I have a local supplier. 1kg should make about 650g minimum';
· 'I can teach you, it's probably one of the easiest synths';
· 'I should have my lab set up and synthed my own pure mec, I have the reagents and equipment, just need to set up in a good space where I can leave glassware out cooking for days and with proper ventilation'; and
· 'A few days after I move in I'll be sitting in 140g+ of pure mesc, fear and loathing style'.
19Your WhatsApp account was also analysed, where the following conversations from 2021 relating to alprazolam (or Xanax) were located:
· in May 2021, you had a conversation with a male, Mark Musi, stating that, 'Alprazolam presses are generally legit, so it's so easy to get the pure powder', and that, 'The powder is not worth dealing with, although a small amount is a heap of doses. But people only want them as pills. I sell as liquid to select customers as it's the only way to accurately measure the powder. If you want benzos, I'd go to 2mg alprazolam pressed bars. They are heaps cheaper than the real deal but look the same and have the same effect';
· on 27 August 2021, you posted 300 milligrams of Xanax to a male in exchange for $150. This is the subject of Charge 1, trafficking in alprazolam;
· on 25 April 2022, you had a conversation with an unknown supplier asking, 'How much for a 20g sample of alprazolam delivered safely to Australia … do you have any experience sending to Australia without seizures';
· on 1 July 2022, you requested a sample of alprazolam from an overseas supplier, Heibei Zimalay Biotechnology.
20Documents seized from your address also included information regarding the synthesis and extraction of alprazolam.
21Charge 11, being a charge of attempting to traffic in cocaine, relates to the cocaine producing plants and 5,884 grams of dried leaf material and boxes of mate coco leaves that tested positive for cocaine, located at your home during the execution of the search warrant on 2 September 2022. The plants, one of two species that produce cocaine, were found in the hydroponic set up next to the cannabis plants. Investigators also located the following messages on further analysis of your WhatsApp, Signal and Facebook accounts relating to cocaine:
· in the conversation with Mark Musi, you stated, 'But if coke is expensive, that's the one, just sell to people you know, if the margin is good, don't need to sell much';
· on 18 January 2022, you sent a message to an unnamed associate, stating, amongst other matters, 'Harvest off two plants that if I showed you them after you would not even know I've picked. I need some Columbian pickers', 'The red berries are seed, I'm literally producing hundreds a month', 'Each kilo of dried leaf produces 5g pure', 'My little tent will produce 25-50g per year, processed', and, 'Once I do a run, I'll send you a pack of Tasmanian rock salt';
· on 1 May 2022, you had a Facebook conversation with a woman in which you discussed the sale of cocaine, stating, 'The coca tea is stimulating, doesn't give the jitters of caffeine … gently chew and you get more instant effect, and numbing and all';
· between 8 June 2022 and 19 June 2022, you had a conversation on the Signal messaging application with an unnamed associate in which you stated that, '1kg dried leaf yields about 4g', and, 'When I had more time and was feeding them regularly my tent was producing 500g/3 months'.
22After being arrested by police, but prior to being interviewed, you suffered a medical episode and were taken to Bendigo hospital before being remanded. You subsequently declined to be interviewed, saying you did not want to risk another medical episode. After being charged, you were granted bail on 16 September 2022. You entered a guilty plea to the charges, for which you are to be sentenced, at a committal hearing on 22 February 2024, on which date the Magistrates' Court refused your application for summary jurisdiction. Since this matter was first listed for a plea hearing before me in Bendigo on 19 June 2024, there was further delay in finalising this matter due to a change in your legal representation.
Nature and gravity of the offending
23The objective gravity of your offending is borne out by the diversity and overall quantity of the various substances found in your possession, combined with a hydroponic set-up to cultivate cannabis and other plants from which cocaine is derived. In addition to the various illegal substances found in your possession, you also had equipment, glassware and literature relating to drug manufacturing. By your plea, you accept that these items were possessed by you with the intention of using them for the purpose of trafficking in drugs of dependence. I consider Charge 2 to be a very serious example of this offence, noting that it is a rolled-up charge.
24This was planned and relatively sophisticated offending. Your counsel, Mr Weinman, concedes that although your addiction issues were the genesis of your offending, it could not sensibly be argued that the scope of your offending, as it developed, was not also motivated by the lure of profits from the sale of drugs.
25You utilised a false name to have substances delivered, albeit to your own address, in 2021 to avoid detection. The various text messages analysed by police reveal that you advised other individuals that you had set up your own lab, with capacity to generate reasonably large quantities of illegal drugs, including mescaline and cocaine.
26I accept that the charges of trafficking alprazolam and the attempt to traffic in cocaine involve relatively small amounts and relate to offending on one day only. However, yours could not be characterised as isolated offending. The incidents of offending span the period between August 2021 and 2 September 2022, with evidence of communications to associates regarding your lab
set-up and potential to manufacture illicit drugs as early as May 2021.27The cannabis cultivated by you was in excess of a trafficable quantity. You possessed plants used to derive cocaine in addition to 584 grams of dried plant materials and boxes of cocoa leaves that positively indicated the presence of cocaine when tested, having been possessed by you on 2 September 2022 in an attempt to traffic in that drug.
28I agree with the concession made by your counsel, Mr Weinman, that your offending, when viewed in combination over this period, falls within the mid to upper range for offending of this kind.
29You bear a correspondingly high level of moral culpability for your offending. You are an educated man, with specialist knowledge of biochemistry and biology. You must have known that what you were doing was illegal. You had time to reflect on your conduct and desist, but you did not.
30What led you, a person with no criminal history, to turn to such illegal activity at the age of 39 is informed somewhat by your personal circumstances, to which I now turn.
Personal circumstances
31You were born in August 1983 and are now 41 years old.
32You were raised in Melbourne, in a supportive family, as one of three children.
33You attended St Bernard's College in Essendon and took a keen interest in science during school. You report finding school difficult at times, especially during sport, experiencing bullying about your height.
34After you completed secondary school, you enrolled in a Certificate III in Horticulture at the Northern Melbourne Institute of TAFE, which you successfully completed. You then enrolled in a degree with honours in biological sciences. It is at this time that you met your now wife.
35Throughout your studies, you worked in roles associated with horticulture, first at Bunnings in its gardening section, at the Botanical Gardens and later at La Trobe University in its various research glasshouses. After completing your studies, you found employment as a consultant agronomist and developed your skills in this field. This led to your appointment as the Head Agronomist with a Singapore based fertiliser company, EuroChem Agro Asia, in April 2016 where you remained until August 2019.
36On your return to Australia, you worked in various management roles, including for AlgaEnergy Australia, between October 2019 and February 2022.
37Your son was born in December 2020. Now aged three and a half, your son has been diagnosed with non-verbal autism. I return to the relevance of his developmental difficulties later in my reasons.
38After being arrested on these matters, you secured employment with Coliban Water as the Coordinator of Biosolids Use in March 2023. However, your employment came to an end when these charges became known.
39You first experimented with illicit substances in high school, primarily cannabis. You also experienced anxiety, for which you were prescribed medication during this time. During your time working in Singapore, you attribute your heavy reliance on alcohol as a response to feelings of depression and the stress of your role.
40After returning to Australia, you were prescribed medicinal cannabis, which you state you began taking in increasing levels.[1] You began growing cannabis to supplement this need. During the COVID pandemic, you became heavily reliant upon benzodiazepines to fall asleep, to the extent that you began ordering them online to supplement your prescription. You state you had developed an addiction to benzodiazepines by late 2021. You attribute your reliance on these drugs to the medical episode you experienced when you were arrested by police.
[1]Further Defence Outline Of Submissions For Plea dated 9 September 2024.
41While I accept your reports of stress and anxiety in a general way, no psychological or other expert evidence was tendered on your behalf. There is no basis for me to conclude that you suffered any diagnosed mental health disorder at the time of the offending, and your counsel does not place any reliance upon the principles enunciated in the case of Verdins[2] in moderating your moral culpability for this offending. I accept that your own issues with illicit drugs were linked to your offending at the beginning. This goes some way to explaining, but not justifying, your overall offending conduct. Desisting from drug abuse into the future will, however, be critical to your ongoing rehabilitation.
[2]R v Verdins [2007] VSCA 62.
42You were granted bail on 16 September 2022 and engaged positively with the bail rehabilitation program, known as the Court Integrated Support Program (CISP). Your CISP case manager, Ms Sarah Sunderland, states you actively addressed all your drug treatment goals and engaged with the supports made available to you during your three-month engagement with that program[3]. You report remaining abstinent from all illicit substances since this time. You have provided the court with a clear drug screen dated 6 September 2024[4], which, save for the presence of cannabinoids (relating to your ongoing use of medicinal cannabis), demonstrates your abstinence from illicit substances as at that date.
[3]CISP Final Progress Report dated 24 January 2023 (Exhibit 4).
[4]Routine Urine Drug Screen dated 6 September 2024 (Exhibit 5).
43After your employment was terminated by Coliban Water, you have been employed on a casual basis as a consultant by Bergmeier Environmental Consulting[5].
[5]Reference of Ron Bergmeier dated 9 September 2024 (Exhibit 6).
Matters in mitigation
44Having addressed the objective gravity of your offending, I turn now to the matters raised on your behalf in mitigation of sentence.
45First and foremost, you have pleaded guilty to these offences and did so at a relatively early stage. By your guilty plea, you acknowledge responsibility for your offending and facilitated the course of justice. You also saved the court and the community the resources associated with a trial, with an associated level of complexity. Your guilty plea entitles you to an appreciable sentencing discount.
46However, beyond the remorse inherent in your plea, none of the material before me evidences genuine remorse for your offending or an appreciation of the gravity of your criminal conduct.
47You gave evidence at your initial plea hearing. An issue arose as to whether your evidence was inconsistent with the guilty plea entered to Charge 2. Following a change in legal representation, Mr Weinman confirmed that you did not resile from your guilty plea to Charge 2 and no longer sought to give evidence on your plea. Accordingly, and in fairness to you, I have attached no weight to the evidence you gave in the earlier plea proceedings.
48Secondly, at the age of 41, you have no prior criminal convictions and are entitled to have the benefit of your previous good character, marked by a life of hard work, recognised in mitigation of your sentence.
49Thirdly, two years have passed since you were charged with this offending. Since that time, you have successfully completed the CISP program, continued in employment notwithstanding the loss of your job with Coliban Water, and have not offended further. Your rehabilitation efforts are not only noted in the CISP report but reflected in a letter of support written by your parents that was tendered on your plea. Your parents state that they were 'profoundly shocked' when they found out about your offending[6]. Since being granted bail, your parents observe as follows:
Since his arrest and subsequent recovery from drug addiction, we have now noticed a significant improvement in his nature. He is thinking clearly and working as hard as he can to be the best father and man he can be. Since his arrest, despite the many subsequent setbacks over the last few years, at every challenge he has done his best to improve his situation.
[6] Letter undated (Exhibit 8).
50Similarly, your wife, in a letter dated 20 February 2024[7], states that since being arrested, you have '[turned your] whole life around' and are now making good decisions and a new life for yourself and your family. She states that you are 'committed to making better choices and avoiding the circumstances that led you down the wrong path'.
[7] Letter dated 20 February 2024 (Exhibit 7).
51Notwithstanding the seriousness of this offending, given your previous good character, absence of any prior criminal history, employment history and progress on strict conditions of bail over the past two years, I assess that you have good prospects of rehabilitation.
52The central focus of your plea related to the question of family hardship. On your behalf, it is submitted that this extends beyond the 'tragic but inevitable consequences' of an offender causing hardship to their dependents due to their criminal offending. Mr Weinman submits that the circumstances of family hardship are sufficiently exceptional to warrant an extension of mercy.
53These circumstances relate to the care required for your three-year-old son, who has been diagnosed with non-verbal autism. Mr Tim Penno, your son's paediatrician, provided a report dated 14 May 2024 to support an NDIA application, which was relied upon at your plea hearing.[8] In that report, Dr Penno records that your son's autism spectrum disorder is currently at level 3 (out of three available levels) for social communication and repetitive patterns of behaviour. Despite 12 months of speech therapy, your son can only sign the word 'wait'.
[8] Paediatrician New Diagnosis Letter of Dr Timothy Penno dated 14 (Exhibit 3).
54Dr Penno states that your son is very routine based although he has the ability to adapt to 'different places'. At the time of the report, your son had increased his attendance at daycare to five days per week. Dr Penno describes you and your wife as a 'real unit' and says you both know how to 'read' your son well. Dr Penno notes the difficulty your wife has in lifting your son, following hernia repairs, and requires the assistance of kindergarten staff to lift your son from the car when he arrives for daycare.
55A report provided by speech pathologist Ellena Binney of Bendigo Speech Works, dated 5 September 2024, states that your son has progressed extremely slowly with speech therapy and is still unable to use words or initiate or copy signs consistently. Ms Binney states that he is unable to communicate his 'wants or needs to those around him' causing emotional dysregulation and frustration, resulting in significant behavioural issues, including displays of aggression and meltdowns[9].
[9] Bendigo Speech Works Report dated 5 September 2024 (Exhibit 1).
56Although there is no reference to your risk of imprisonment in her report, Ms Binney does note that if your son does not 'consistently' have familiar people around him to support his development, he is at 'significant risk of falling even further behind his peers'.
57In addition, your wife, has a number of medical and mental health conditions as set out in a letter from her general practitioner, Dr Emma Haugh, dated 21 May 2024.[10] Following the birth of your son, your wife underwent hernia repair, which had a number of complications which impact on her bladder. Despite surgery to correct this, Dr Haugh states that she is in daily pain, cannot walk far or lift heavy objects. In addition, she suffers from endometriosis, which Dr Haugh states causes significant pain when it flairs up. Dr Haugh also states that Ms Carabott has been under the care of community mental health services for PTSD. Dr Haugh is of the opinion that without your support, your wife's mental health would deteriorate and that it would be difficult for her to manage your son's behavioural issues by herself.
[10] Letter of Dr Emma Haugh, Campaspe Family Practice dated 21 May 2024 (Exhibit 2).
58In a letter written to the court by your wife, dated 20 February 2024[11], she states that she requires a lot of physical assistance caring for your son and relies upon your help to lift him and to assist with bathing and clothing et cetera on a daily basis. She states she is unable to work and is therefore reliant upon your income. I have also had regard to the detailed information she has provided about the care required for your son in her recent letter dated 25 September 2024[12].
[11] Supra 8.
[12] Letter dated 25 September 2024 (Exhibit 9).
59A further letter has been provided by maternal child health nurse, Ms Tamsin Gordon, dated 9 October 2024, who had recently met with your son for a maternal child health check[13]. In her letter, Ms Gordon describes your son's emotional dysregulation during that meeting, including pacing the room and displaying signs of distress. In that letter, Ms Gordon states she observed you to calm him down and act as an 'intermediary' by anticipating his needs and assisting his allied health workers to understand him better. She states that as your son grows bigger, his physical outbursts are more difficult for your wife to handle, and that you are the one to contain and protect your son from harming himself and others.
[13] Letter of Tamsin Gordon dated 9 October 2024 (Exhibit 11).
60Your counsel accepts that your son also receives supports through the NDIS and further concedes that your parents both live in Melbourne and your wife has a parent who lives in Bendigo, thereby able to offer some assistance in the care of your son. However, he submits that this level of assistance 'would be minimal at best'. In a letter written by your wife's mother, dated 26 September 2024, she states that at the age of 65, she has degenerative spinal issues and would be unable to assist in dealing with your son's physical needs or to have him or your wife live with her in her small unit.[14] She states she is unable to assist in washing him or in dealing with his regular panic attacks.
[14] Letter dated 26 September 2024 (Exhibit 10).
61Financial records are also relied upon to demonstrate the tight financial circumstances faced by the family, where you are presently the sole breadwinner, and the loss of your income, submitting that this could result in the loss of the family home.
62Family hardship is generally only a mitigating factor if it will cause 'exceptional hardship'.[15] To establish exceptional hardship, an accused must produce 'cogent evidence'. The evidence must establish that the situation is so exceptional that it 'would be, in effect, inhumane' not to take it into account.[16] The hardship must be 'considerably more severe than is normal' for a family where an offender is imprisoned.
[15]Markovic v The Queen [2010] VSCA 105.
[16]R v Esposito [2009] VSCA 277, at [14].
63The principle is applied as an exercise of mercy properly extended by the court in such a case. The Court of Appeal has recognised that there must always be a place for the exercise of mercy where the circumstances warrant it.
64I am satisfied that the onerous test of exceptional family hardship is made out in this case. Given the medical and other material provided on the plea, I am satisfied that your child suffers from a profoundly disabling form of autism that results in significant behavioural difficulties requiring extensive supports. The uncontradicted medical evidence relating to your wife indicates that her physical and mental health difficulties impede her ability to manage the physical demands of caring for Izzak and in regulating his behaviours on her own. I am not satisfied that the assistance that could be provided by his grandparents would be any more than marginal.
65In my view, the circumstances here have some analogy with the case of
DPP v Gerrard,[17] where the offender's deaf wife was dependent upon him for the care of their autistic son. In Gerrard, the Court of Appeal found that exceptional family hardship existed, in that case warranting moderation in determining the appropriate term of imprisonment for a serious glassing offence.[17]DPP v Gerrard [2011] VSCA 200.
Sentencing submissions
66On your behalf, it was submitted that despite the objective gravity of your offending, supporting your future rehabilitation should be a significant sentencing consideration for the court. It was argued that a community correction order best achieves the protection of the community by supporting your ongoing rehabilitation whilst satisfying the requirements of proportionality, parsimony and just punishment.[18] You have been assessed as suitable for a community correction order.
[18] Citing Borg v the Queen [2020] VSCA 91.
67The ultimate submission made on your behalf was that a combination sentence reflecting your 15 days on remand combined with a lengthy community correction order could best meet the competing sentencing considerations in this case whilst acknowledging that this would be a merciful sentence in recognition of the family hardship that would flow if you are imprisoned.
Consideration
68Having given much consideration to these submissions, I have concluded that the gravity of your offending, notwithstanding the matters in mitigation, warrants an immediate term of imprisonment. As the prosecution submissions highlighted, when combined, your offending involved a diverse and significant amount of illicit substances and materials, possessed by you for a trafficking purpose. As indicated, Charge 2 is a serious example of that offence.
69It was conceded by your counsel that the scale of your offending precluded a finding that you engaged in this offending solely for your personal use. I am satisfied that you utilised your skills in biochemistry and botany intending to manufacture drugs and cultivate plans, particularly cocaine-producing plants, in an attempt to traffic in those drugs, lured by the prospect of profits. Other people must be deterred from such offending. The trade in illicit drugs causes untold harm to our community. Although your ongoing rehabilitation is relevant to the sentence I impose, the paramount sentencing considerations in cases such as these are general deterrence, denunciation and community protection.
70Given the scale and diversity of your drug-related offending, specifically deterring you from future offending also has a role to play although moderated given my positive assessment of your future prospects as demonstrated by your compliance with bail over the past two years.
71I also have regard to the fact that Charges 2 and 4 are rolled-up charges. Although one maximum penalty applies to each charge, in sentencing you for this offending, the sentence I impose must reflect the overall criminality of your offending comprising the rolled-up charges.
72I am also required to have regard to current sentencing practices if they can be discerned. On your behalf, I was referred to earlier decisions of this court in DPP v Canavan[19] and DPP v McCarthy[20], which I have reviewed.
[19] [2016] VCC 1112.
[20] [2020] VCC 1250.
73I do not consider these authorities to be comparable to yours. In Canavan, the offender was sentenced for cultivating 50 cannabis plants, weighing 37.95 kilograms. The other cannabis possessed by the offender was for personal use, and accordingly, the relevant maximum penalty was one year's imprisonment.
74Similarly, the case of McCarthy also involved a charge of cultivating and possessing cannabis. In both cases, the offenders were found suitable for a community corrections order. Here, your offending is far more serious, involving a diverse range of substances possessed for a trafficking purpose in addition to the cultivation of cannabis.
75As to the drug possession charges, your counsel accepts that the relevant maximum for each of these offences is five years' imprisonment given that it could not be established on the balance of probabilities that the offences were not committed by you for any purpose relating to trafficking.
76In sentencing you, the sentence I impose must reflect the totality of your offending conduct, conscious that the most serious offending – being Charges 2, 3, 4 and 11 – all relate to offending on one day. I have had regard to the principle of totality in determining the amount of cumulation to impose on each sentence to reflect the separate criminality of the offending.
77Finally, on your behalf, a number of powerful factors operate in mitigation of your sentence, most particularly the significant family hardship that will be caused by your imprisonment. I have given these matters full weight in mitigation, both in the sentence imposed on individual charges and in setting an appropriate non-parole period.
Sentence
78Balancing the matters to which I have referred whilst having regard to the maximum penalty for each offence, I sentence you as follows. Mr Carabott, can you please stand.
79On Charge 1, trafficking in alprazolam, you are convicted and sentenced to six months' imprisonment.
80On Charge 2, being a rolled-up charge of possession of a substance, material, documents or equipment for trafficking in a drug of dependence, you are convicted and sentenced to two years, four months' imprisonment. This is the base sentence.
81On Charge 3, cultivation of a narcotic plant, you are convicted and sentenced to two years' imprisonment.
82On Charge 4, being a rolled-up charge of possession of a drug of dependence, you are convicted and sentenced to 18 months' imprisonment.
83On Charge 5, possession of a drug of dependence, you are convicted and sentenced to 12 months' imprisonment.
84On each of Charges 6, 7 and 8, possession of precursor chemicals, you are convicted and sentenced to 10 months' imprisonment.
85On Charge 9, possession of a drug of dependence, namely ketamine, you are convicted and sentenced to 12 months' imprisonment.
86On Charge 10, attempt to possess a drug of dependence, namely pentylone, you are convicted and sentenced to six months' imprisonment.
87On Charge 11, attempt to traffic in a drug of dependence, namely cocaine, you are convicted and sentenced to two years' imprisonment.
88I make the following orders for cumulation on Charge 2 and upon each other in recognition of the separate criminality associated with these offences whilst having regard to the sentencing principle of totality:
(a)one month of the sentence imposed on Charge 1;
(b)four months of the sentence imposed on Charge 3;
(c)three months of the sentence imposed on Charge 4;
(d)one month of the sentence imposed on Charge 5;
(e)one month of the sentence imposed on Charge 9; and
(f)four months of the sentence imposed on Charge 11.
89This gives a total effective sentence of three years, six months' imprisonment.
90Having regard to the various matters in mitigation to which I have referred, and in particular the exceptional family hardship, I consider it is appropriate to fix a shorter non-parole period of one year, nine months' imprisonment. This is the period of imprisonment you must serve before you are eligible for parole.
91Pursuant to s18 of the Sentencing Act 1991, I reckon 15 days' imprisonment as already served under the sentence I have imposed.
92Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of four years, four months' imprisonment with a
non-parole period of two years, four months.93Finally, I make the disposal orders sought by the prosecution, noting that they are not opposed.
Appendix A – Rolled-up Charge 4 – Possession of a Drug of Dependence
| No. | Drug of Dependence | Quantity |
| 1. | Dried mushrooms containing psilocybin | n/a |
| 2. | Pentylone | 113.9g |
| 3. | Harmine | 31.3g |
| 4. | Methcathinone | 34.6g |
| 5. | Diacetylmorphine | .4g |
| 6. | AlphaPVP | 1.0g |
| 7. | Gamma Butyrolactone | 2.3g |
| 8. | 4-Hydroxybutanoic Acid | 9.0g |
| 9. | N-Dimethyltryptamine | 31.3g |
| 10. | Oxvcodone | .1g |
| 11. | 7-Nitrol 4-Benzodiazepine | approx. 2.5g |
| 12. | Monoacetylmporphine | 1.5g |
| 13. | Methorphan | n/a |
| 14. | Mitragynine | n/a |
| 15. | Lidocaine | n/a |
| 16. | Pregabalin | n/a |
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