Director of Public Prosecutions v Carron and Gallin
[2018] VCC 1469
•10 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -17-01147
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER CARRON JULIAN GALLIN |
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| JUDGE: | HER HONOUR JUDGE GAYNOR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 10 September 2018 |
| CASE MAY BE CITED AS: | DPP v Carron & Gallin |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1469 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors | |
| For the Director of Public Prosecutions | Mr J. Shaw | Office of Public Prosecutions | |
| For Accused M | Mr C. Mandy | ||
| For Accused K | Mr M. Kelly | ||
HER HONOUR:
1Julian Gallin, you have pleaded guilty to one charge of trafficking a drug of dependence, that is cocaine, in a large commercial quantity. You have also pleaded to the summary charge of dealing with property suspected of being proceeds of crime.
2Christopher Carron, you have pleaded guilty to one charge of trafficking in a drug of dependence, cocaine, in a commercial quantity.
3The facts underlying your offending are as follows. Each of you were members of a cocaine trafficking syndicate, the other members being one Kelvin Wong and Abudllah Topal. You, Mr Gallin, established and managed the syndicate's drug trafficking business and your main role, Mr Carron, was to prepare and package cocaine into individual snap lock bags ready for distribution. The roles of Mr Topal and Mr Wong were to deliver cocaine to customers.
4The syndicate used premises in Tennyson Street, St Kilda to prepare and package cocaine for delivery which was owned by your partner, Mr Gallin, Belinda Nixon. The way the syndicate operated was that you, Mr Gallin, had a customer list. A customer from that list would order a quantity of cocaine by sending an SMS to what was known as the "business phone", saying they wanted to catch up and meet for a drink. That business phone was usually monitored by you, Mr Gallin, but was occasionally monitored by you, Mr Carron, or Mr Wong. The order would be confirmed via a SMS sent from the business phone to the customer saying "My guy's coming to see you, he'll contact you" and the customer would then send an SMS to the business phone giving an address for the delivery of the cocaine. That order would be relayed to Mr Topal or Mr Wong by a SMS from the business phone and they would confirm receipt of it. The person monitoring the phone would then confirm that the cocaine would be delivered by sending a SMS to the customer's phone and the cocaine would then be delivered by Mr Topal or Mr Wong who would receive payment.
5The syndicate business operated seven days a week with the couriers, Mr Topal and Mr Wong, working on a roster system. On 17 August 2015, police investigators began monitoring the syndicate's activities via a listening device that was installed at the unit and then via an optical device also installed at the unit on 21 August 2015. This enabled investigators to identify the system the syndicate used to distribute cocaine.
6Under this system you, Mr Gallin, and you, Mr Carron, would prepare the cocaine for distribution on the dining room table, it being separated into individual snap lock deal bags. Those deal bags were separated according to purity; standard deals of lower purity which usually retail for $300 and primo deals of high purity retailing for $400. Each courier had a specific location from which to collect their supply. Mr Wong would collect his supply from within the kitchen range hood and Mr Topal would collect his supply from the coffee machine pod filter. The couriers would start working at 2.00 pm and finish between 10.30 and midnight, usually taking ten standard and ten primo deals with them between Monday and Thursday and 20 standard and 20 primo deals on each shift between Friday and Sunday. After finishing their shifts, Mr Topal and Mr Wong would return to the unit any unsold deals placing them in their respective storing locations and giving the earnings for the night to you, Mr Gallin.
7Whilst you, Mr Gallin, primarily operated the business from the unit, you also operated from another address in Bentleigh.
8On two occasions being 3 September 2015 and 22 October 2015, police investigators covertly entered the unit locating quantities of white powder which had been individually wrapped into small snap lock bags. Samples taken later on analysis proved positive for cocaine. During this period of monitoring you, Mr Carron, were seen to be monitoring the business phone on a couple of occasions although you would then report back to Mr Gallin, as did Mr Wong.
9It is the prosecution case that between 8 August and 24 November 2015 the syndicate conducted 2402 transactions in which cocaine was delivered to customers. Police entered the unit on 24 November 2015 at which time both of were sitting at the dining room table where you, Mr Gallin, were on the business phone and you, Mr Carron, were preparing cocaine by putting it into individual deal bags ready for distribution.
10Police located a quantity of cocaine in various stages of preparation, some of it already having been sorted into about 150 individual snap lock deal bags. In a safe in the attic police discovered $60,000 in cash. The two of you were arrested during the search and Mr Wong and Mr Topal were arrested at other premises later during the day. All four of you conducted no comment records of interview with police.
11The prosecution case is that you, Mr Gallin, trafficked in a total of 3.735 kilograms of cocaine mixed with another substance which is the total of the quantities delivered to customers by Mr Wong and Mr Topal and the quantities found at the unit on 24 November 2015. You, Mr Carron, have pleaded guilty to trafficking 900 grams of cocaine mixed with another substance.
12The large commercial quantity applicable to cocaine mixed with another substance is one kilogram and the commercial quantity applicable to cocaine mixed with another substance is 500 grams. The maximum penalty for trafficking in a large commercial quantity of a drug of dependence is life imprisonment and/or 5000 penalty units. The maximum penalty for trafficking in a commercial quantity of cocaine is 25 years' imprisonment. The maximum penalty for dealing with property suspected of being the proceeds of crime, this relates to the $60,000 found in the safe, is two years' imprisonment.
13You, Mr Gallin, pleaded guilty at the start of a committal hearing on 5 June 2017 and you, Mr Carron, pleaded guilty at the conclusion of that committal hearing on 7 June 2017. You, Mr Gallin, were remanded in custody between 24 November 2015 and 2 March 2016 when you were released on bail. At a plea mention hearing on 28 February 2018 you made application to revoke your bail and went into custody where you now remain with the sensible recognition that only a term of imprisonment would be imposed in your case.
14You, Mr Carron, were remanded in custody between 24 November and 16 December 2015 and were then released on bail. I was informed by each of your counsel that because of the MRC riots at the time, some of the time that you spent in custody during that period was subject to 23 hour lockdown whilst you were held at the MRC.
15Mr Wong pleaded guilty at a committal hearing on 4 October 2016 to one charge of trafficking cocaine in a large commercial quantity, that being 2.907 kilograms and one charge of dealing with property suspected of being the proceeds of crime, $9295. On 3 April 2017 Her Honour Judge Cannon sentenced him to a term of imprisonment of seven years with a non-parole period of four years.
16Mr Topal originally pleaded not guilty to a charge of trafficking in cocaine in a commercial quantity, that being 827.8 grams but the matter was resolved and his plea is yet to be dealt with.
17I now turn to each of your personal circumstances beginning with you, Mr Gallin.
18You are 34 years of age, the second of three children born to your parents.
You have a brother ten years older than you who was born to your parents when they were 18, who was then adopted out. You then had contact with him but essentially things did not work out and you are no longer in contact with him. You also have an older sister. Your father established what became a successful chain of music stores. Your mother now teaches English at university and your sister works at one of your father's music stores and also teaches music.
19Although your family was affluent your home life was extremely unhappy. Your parents had a contentious marriage and fought constantly and you told psychologist, Michael Crewdson, whose report dated 25 May 2018 was tendered on the plea, that you were the subject of much emotional and physical abuse, particularly at your father's hands.
20You began your schooling at Scotch College where you remained until Year 9 but this was apparently an intensely unhappy experience for you. You were a tall and grossly overweight child. You told Mr Crewdson that in Grade 5 you weighed 90 kilograms and you were basically the only Greek boy at your school.
You described to Mr Crewdson continuous bullying in your years at Scotch College involving almost daily fights during lunch time. You would often fake illness in order to avoid school. Eventually your parents separated when you were 14. In Year 9 you failed the year and were asked to leave Scotch College because of your lack of academic prowess.
21Although assessed by Mr Crewdson as being "an extremely intelligent man", it appears that in the traumatic years of your childhood and early adolescence, you had difficulty learning and your academic results were poor. You were then sent to the Frank Dando Sports Academy, a school operating along strict physical disciplinary lines which you disliked and which you stayed at only briefly but where you were introduced to boxing and martial arts with which you quickly became obsessed. You were then sent to Wesley College but this was also unsuccessful and you left during Year 10.
22On leaving school you immersed yourself in training at gymnasiums in boxing and martial arts where you revered your instructors, one of whom employed you on a sporadic basis over the years as a security guard in his business. Your obsession with boxing became coupled with an obsession with your body image. Unfortunately via your instructors at the gym you were introduced to a chemist who supplied you with a water based steroid, which you both drank and injected for years. You became extremely successful as a boxer, engaging in amateur fights by the age of 19 and earning a living as a professional boxer by the age of 24. However your use of steroids was uncontrolled.
23In 2009 when you were 25 you were diagnosed with a serious illness which meant you could no longer continue with boxing and this devastated you.
You were permitted to continue with wrestling, which you did, but your use of steroids despite the diagnosis remained uncontrolled and in fact it would seem you believed that steroids would, in some way, assist with your illness and your use of it actually increased.
24You met your partner, Belinda Nixon, in 2010 and the two of you lived together. In 2012 you collapsed and were hospitalised as a result of your steroid overuse. You had never informed your partner of your illness. She inevitably became aware of it in the course of your treatment whilst in hospital and she then separated from you, although the two of you remained in touch. You were renting her unit at the time that you were engaging in these trafficking activities. It is not alleged that your partner had any idea whatsoever of the illegal use to which her premises were put.
25You worked as a security guard from the time you were 18 and also between the ages of 20-24. As well as working as a security guard on weekends you delivered pizzas during the week so you could train full time in the gym.
You commenced a carpentry pre-apprenticeship in 2013 which you did not complete.
26You have a prior conviction for recklessly causing injury. This apparently arose in the course of your work as a security guard, you were placed on a
non-conviction adjournment to be of good behaviour and I do not regard that prior conviction as relevant for the sentencing purposes before this court.
In 2015 you also held a job as operations manager for Protech Security. You also, in your mid-20's, became involved in large scale betting on horses in which you were successful and became the part owner of about eight horses.
27The separation from Belinda Nixon however was apparently devastating for you. You believed your illness was going to kill you and that you had no reason to live. It was in this context that you were first introduced to cocaine in about 2014, at the age of 30. Your use of it rapidly increased and by the time of your arrest you had had a habit for a couple of years involving four grams of pure cocaine per day at a cost of $10,000 per week. It was your counsel's submission that in the context of this use and the cost of it, your involvement in this offending became inevitable. Despite your earnings from horse racing, they were unequal to the cost of your drug addiction and you were soon in debt to your supplier.
28The syndicate of which you became a member had been ongoing for some time before your involvement in it. Your counsel told me that this syndicate was headed up by a man named Vlad Djordjic, who has also been dealt with for large scale trafficking. I will refer to his sentence later. He supplied drugs to a man named Kev who then passed them on to a man named Chris whose role you eventually assumed in the syndicate after he was gaoled in 2015. In order to repay your debt and to have access to cheap cocaine you began working for the syndicate in a courier role before assuming the position you held in the syndicate at the time of your arrest.
29Counsel informed me that despite the position you held in this drug syndicate, your cocaine use was so extensive that at the time of your arrest you still remained in debt to those in the supply chain above you.
30You remained in custody for three months during which time you underwent withdrawal from cocaine, which was apparently extremely difficult. It was your first experience of gaol. While in custody you were visited by Amanda Brown, a senior consultant with Lamberti Associates, a rehabilitation consultancy.
She assessed that residential rehabilitation would be the most appropriate treatment for you and referred you to Arrow Health, an addiction treatment provider.
31You were granted bail and on 3 March 2016 entered their residential rehabilitation facility at Alexandra where you remained until 26 May 2016.
You were then referred to their residential program in Melbourne which you completed on 18 August 2016. Following this you became an outpatient client attending regularly for counselling and follow up until you were returned to custody on a voluntary basis in February of this year. Your post-residential treatment included group sessions four mornings a week with Arrow Health, twice weekly urine screens, one on one counselling once a week and daily attendance on two Narcotics Anonymous meetings.
32In his report dated 30 May 2018, John Campbell of the Arrow Health clinical team stated that you had successfully completed this program stating:
"Since the beginning of the counselling relationship with the writer which began in March 2016 I must iterate I have witnessed a profound change of heart in how Julian Gallin engages with and relates to the world".
33He continued, "He deeply considered and accepted the ethical and legal breaches of his past behaviours, has shown remorse and articulated the impact on others as well as himself".
34Post residential rehabilitation, you also attended fortnightly counselling appointments with Ms Brown together with twice weekly urine drug screening and random drug screening organised by Ms Brown. In her report of 28 May 2018, Ms Brown said that you had been drug free since your admission to custody in November 2015. That is, for a period of more than two and a half years with two years and three months of supervised urine drug results, more than 100 of them - all of which returned negative to illicit substances. Those drug screen results were tendered on the plea.
35In her report, Ms Brown described you as diligent and committed to your recovery process and said that you had, "Absolutely made the most out of his recovery program at Arrow Health along with his dedication to 12 step fellowship in Narcotics Anonymous". She said you presented as well organised, articulate and intelligent and as having undertaken extensive therapeutic work whereby you have linked your patterns of behaviour with the underlying psychological issues that she said had plagued you throughout your life stemming from a traumatic family life. She stated, "He now presents with advanced insight into the reasons why he had been using drugs with alcohol", it being noted that when you first began using cocaine in particular you combined it with alcohol.
36Ms Brown noted that you had assisted in mentoring other drug users within the program, in particular engaging in the intervention of a close friend's sister who had relapsed into drug use. She said you had made a concerted effort in your recovery over the period of time since you were arrest and maintenance [sic] you as being in the maintenance stage of your recovery, of which she said:
"People in the maintenance stage of recovery have become able to sustain recovery patterns with a prolonged concentration on their recovery. They are more aware of their triggers and the stressors that could lead to relapse and their recovery becomes an integrated aspect of themselves".
37She described you as a very different man who had accepted your fate, that being inevitable incarceration, "with sadness after having significantly reclaimed his life". She stated, "Should he continue on this positive trajectory that it is my opinion that Mr Gallin would be well placed to be a positive and contributing member of the community".
38You reunited with Belinda Nixon in 2014 after a chance encounter by which she fell pregnant and you now have a four year old son. You have also in the meantime whilst on bail been delivered of a second child, a daughter, who was born in November last year. You were described by Ms Brown as being extremely devoted to Belinda Nixon and your children. Belinda Nixon remained supportive of you, attended the plea hearing and in a written reference said that she had seen you "suffer with severe depression, chronic illness as well as his addiction". She said that your arrest and subsequent incarceration had had a terrible effect upon your family and whilst extremely traumatic, "I know that it has forced Julian to confront his addiction and mental health issues".
39She described your commitment to your rehabilitation, your strong connection to Narcotics Anonymous and your support of other addicts within your program at Arrow. She stated, "There is no excusing what he has done however
I sincerely believe that he will not let down the community, family or friends again in future". It was clear from her reference that Belinda Nixon, as your counsel Mr Heliotis QC stated, is prepared to continue to support you and remain in a relationship with you despite the considerable term of imprisonment that you face.
40I received a host of references from family and friends attesting to your dedication in rehabilitating yourself, your devotion to Belinda Nixon and your two children. References from your father, mother and sister all expressed a determination to continue in support of you.
41In one reference the writer, Paul Palito, wrote of meeting you when you were both inpatients at the Arrow Health residential rehabilitation facility where he noted you to be "tremendous support to his peers and also myself.
Julian surrendered to the program and made enormous steps towards turning his life around". His relationship has continued with you via Narcotics Anonymous and he describes you as being a valuable member of the NA community.
42In addition to your recovery whilst in the community you have, in partnership with two others, established a business called Prestigious Stone which imports reconstituted stone from China. You were responsible for the financial book keeping and strategic direction of the business until you returned to custody. Your partner, Trent James, a sales and managing director, in his reference wrote of the quick and positive growth of this company of which you are a one-third shareholder and partner and he described you as displaying an exemplary work ethic, "often working up to 12 hours per day while prospecting for new clients and setting up new business processes". Mr James said that he and the third partner were aware of your legal situation and would continue to support you.
43Since returning to custody you have undertaken full-time study and have enrolled with Open University to undertake a Bachelor of Business and Law. You hold the trusted position of Programs Billet in the gaol which is a position whereby you ensure that inmates are attending their courses.
44The material advanced in support of your rehabilitation was wide ranging and impressive. I accept that this rehabilitation has been transformative for you and that it is a transformation that you intend to maintain in the foreseeable future. Both personally and professionally you have strong protective factors in the support you enjoy from your family and friends and in the successful business you have helped establish. Most importantly I accept that you have successfully dealt with your drug addiction and in the process worked through the psychological factors which underlay that addiction. In short I regard your rehabilitative prospects as extremely positive. In my view you could not have used your time in the community following your release on bail in a more productive or pro-social manner.
45I accept you are remorseful for your offending, have taken responsibility for it and that the man I am sentencing today is an entirely different one to the man who engaged in the serious offending that has brought you before this court after your arrest in November 2015.
46However there is no argument that the only way a court can deal with you in response to this offending is the imposition of a lengthy term of imprisonment. Indeed this is something you have clearly recognised when seeking to revoke your bail at the mention in February to more quickly to undertake the sentence you knew must be imposed. Your offending is simply too serious.
47It is the prosecution submission that your offending was at the high end of gravity as you were trafficking in more than 3.5 times the large commercial quantity applicable to cocaine mixed with another substance and I agree with that submission. It occurred, as the prosecution stated in its opening, "in the context of a well organised, highly professional, ongoing drug trafficking business".
48It was your counsel's submission that your position and that of Mr Wong in the syndicate were not as disparate as that claimed by the prosecution.
Your counsel pointed out that Mr Wong had been a member of the syndicate well before you came into it. He said the history of your involvement was that you commenced as a deliverer in the same role as Mr Wong and Mr Topal and that the phone was then operated by the other man, Chris, who I have referred to, who was arrested in 2015 after which you were offered the job of answering the phone and in effect managing the syndicate. This was largely because he said you had access to premises where the drug could be cut and prepared, bagged and delivered.
49Mr Wong was in fact a cousin of Kev, one of the suppliers to the syndicate.
In addition Mr Wong sometimes manned the phone and in fact kept a log which formed, it must be agreed, the greater basis for the estimation of the
3.9 kilograms in which you trafficked. The further distinction he submitted was that Mr Wong engaged in cocaine use only recreationally and was essentially involved in this syndicate for commercial gain.
50Referring to Her Honour Judge Cannon's sentence dated 3 April 2017 at paragraph 10, "Mr Wong is identified as overseeing 19 transactions between
20-24 August 2015 as well as other transactions on 8-9 September and
10 November 2015.” I accept the fact that you were heavily addicted to cocaine and participated in a syndicate primarily in order to support your habit is, to some degree, a mitigatory factor and I also accept that Mr Wong was a longstanding member of this syndicate who had assumed, to some extent, a level of trust such that he operated within the syndicate in a role greater than that of mere courier. Indeed, Her Honour found as such.
51I also accept that the extensive rehabilitation you have engaged in over a considerable period of time is a mitigatory factor available to this court which is not available to Her Honour. However it is my view that while I accept the disparity between your role and that of Mr Wong, is not as great as that usually seen between a managing role and that of courier. You nevertheless for the period of time you were engaged in this criminal activity were in a position of considerable authority and any sentence I impose should be reflective of that fact.
52Mention should also be made of Vladimir Djordjic, who was also dealt with by Her Honour on pleas to two charges of trafficking in a large commercial quantity, the second of those being a rolled up count in relation to methamphetamine and cocaine, one rolled up count of knowingly dealing with the proceeds of crime with intent to conceal an amount in excess of $3 million, together with a charge of possessing an unregistered handgun and a rolled up summary of possessing prohibited weapons, being two knuckleduster handguns.
53Charge 1 in that case related to 1.5 kilograms of cocaine mixed with another substance which he supplied to you on six occasions between 25 August and 1 November 2015. The second charge related to drugs located at his premises being 2.3 kilograms of cocaine mixed with another substance and two kilograms of methamphetamine mixed with another substance. Most of the cocaine had a purity of 92 per cent or more while the majority of the methamphetamine had a purity of 82 per cent.
54Her Honour sentenced Mr Djordjic to a total effective sentence of 19 years and six months with a minimum term of 14 years. She sentenced him on the basis of being a high level executive in a well organised, highly professional drug trafficking business dealing in drugs of high purity for which he received very large amounts of money. Mr Djordjic unsuccessfully appealed that sentence, see Djordjic v R [2018] VSCA 227.
55Parity in relation to this case was not argued before me but it is my view that his case may be distinguished from yours on the basis that the activities he engaged in, while partly relating to your offending, clearly exceeded it in a major way and he held a higher role in the drug trafficking hierarchy,
that is, as a major wholesaler of illegally imported drugs before their preparation for sale. Again, while it was accepted Mr Djordjic himself had a substantial drug addiction and had made substantial rehabilitative advances while in custody, Her Honour did not have the evidence of the wide ranging reformation present in your case.
56At the end of the day I do accept that you engaged as a manager of a successful, well established syndicate responsible for the distribution into the community of a large quantity of a damaging drug. I accept that the gravity of your conduct is high. Any sentence I impose upon you must also reflect the gravity with which such offending is regarded as indicated by the seriousness of the maximum penalty applicable. Further the Court of Appeal in Gregory (a pseudonym) v R [2017] VSCA 151 made it clear that sentencing in this area has been inadequate and needs to be uplifted.
57In sentencing you I take into account your plea of guilty which I regard as a genuine expression of remorse given the quite remarkable rehabilitative progress you have made such that I have determined your prospects of rehabilitation to be positive when combined with the strong supportive factors
I have outlined and which I am satisfied are outgoing.
58It is my view that protection of the community warrants less attention in your case than in other cases of this kind. There has also been evidence by many of the references as to expressions of remorse by you for this offending as well as the letter you wrote to this court, often a parlous exercise for accused persons who often descend into self-serving excuses for their conduct. Yours was, however, an entirely penitent document - you also taking responsibility for introducing Mr Carron into the syndicate.
59I further accept that your offending occurred as a result of a severe drug addiction itself and that the main benefit to you was access to cheaper cocaine. I am satisfied that your addiction arose from underlying trauma which you have thoroughly addressed in the rehabilitative work you have undertaken on bail and I am also satisfied that specific deterrence is not now a factor in your case.
60However the prosecution has properly submitted that the issue of general deterrence looms large in the sentencing exercise before me, as does denunciation of your conduct.
61The final mitigating factor is one where there has been delay and the authorities make it clear in such cases the rehabilitative advances of an accused in that time must be taken into account. Additionally your six months in residential rehabilitation must be factored in moderating on any sentence imposed, see Akoka v R [2017] VSCA 214.
62In all the circumstances I have decided that the head term of the sentence
I must impose is one which should reflect the gravity of your offending conduct but that the minimum term will be less than would be otherwise the case because of the unusually strong mitigating factors present in your case. Stand up please, sir. I sentence you as follows:
63On Charge 1, you are sentenced to nine years' imprisonment.
64On Charge 2 you are sentenced to 12 months' imprisonment of which
six months is to be served cumulatively to the sentence imposed on Charge 1 giving a total effective sentence of nine years and six months.
65I order that you serve a minimum of five years before becoming eligible for parole. What is the PSD? Have a seat, sir.
66MR SHAW: 296 days not including today.
67HER HONOUR: I direct that 296 days of this sentence have already been served by way of pre-sentence detention. Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of 11 years and order you serve a minimum term of eight and a half years. Thank you. All right, thank you very much.
68I now turn to you, Mr Carron. You are 33 years old, the second of two children born to your parents. Like Mr Gallin you grew up in affluent circumstances, your father being the proprietor of a successful concreting business. His marriage to your mother was problematic. Your father worked very hard, spent long hours away and you had a distant relationship with him. Your mother struggled with a number of mental disorders and was subsequently diagnosed with bipolar disorder and a borderline personality disorder.
69You attended Wesley College where you completed Year 7 and repeated
Year 8. You completed Year 9 at Geelong Grammar and Years 10, 11 and 12 at Melbourne Grammar. In a letter dated 1 June 2018 your sister, a post-graduate student and registered psychologist, said your mother's mental illness meant she was an inconsistent and sometimes emotionally abusive parent and this combined with your father's absence meant the two of you were close and "really supported each other, looking out for one another as that's all we had".
70When you were in Year 8 your parents separated. You remained with your mother but the financial situation became strained. Your father ultimately remarried and had three more children in that relationship. Most importantly, following that separation your mother's mental health condition deteriorated drastically. She began drinking heavily, became increasingly suicidal and was ultimately admitted to a psychiatric hospital where she stayed for a month. According to your sister, this was the start of what became recurrent suicide attempts by her and subsequent hospitalisation in the following years.
Your sister, in a letter, described how your mother's parenting capacities reduced significantly so that as teenagers the two of you had to undertake grocery shopping, cooking, cleaning and paying bills.
71As your mother's alcoholism increased so did her suicide attempts. Your sister described how either she or you would come home from school to find your mother either unconscious from a prescription overdose or covered in blood from cutting herself. You would then have to call an ambulance or her psychiatrist. You would visit her in hospital daily as you were her only support. For a nine month period in your last year at school you had to manage this situation alone as your sister was then overseas.
72There were suspicions at your schools that you suffered from attention deficit hyperactivity disorder (ADHD) but this was never followed up. Unsurprisingly in the circumstances your VCE marks were poor and insufficient to gain you entry into university.
73You then undertook a short course at TAFE and took on employment in a stockbroking firm. Whilst working there you studied part-time at RMIT where you completed a degree in economics and finance and ultimately completed a Masters of Applied Finance. You were rapidly promoted in your field, obtaining full-time employment as a stockbroker when you were 24.
74You attended evening classes for your Master's degree and in order to cope with your long days and the concentration deficits you suffered as a result of what has now been clearly diagnosed as an ADHD condition, began taking dexamphetamines to help with your ability to concentrate and cocaine to assist with the long hours of work and study. The use of cocaine was unfortunately made easy for you because of the industry in which you worked where its use was prevalent, in particular in the firm where you were employed.
75In her report dated 23 May 2013 Amanda Brown of Lamberti Associates Rehabilitative Consultants wrote:
"The sad irony is that he was employed as a stockbroker due to taking cocaine with his employer. This social interaction being one of the reasons he was employed. Mr Carron reported that cocaine use was common amongst the stockbroking field".
76Your use of cocaine began when you were 19 but escalated, and by age 23 had progressed from mainly weekend use to sometimes daily. By the time you were 24 you were taking cocaine most days, consuming between four and eight grams a week. You also told Ms Brown that between the ages of 25 and 28 you used dexamphetamine daily.
77In a long and again surprisingly helpful letter to this court (letters to the court from offenders are generally self-serving and unhelpful), you described working 12-14 hour days, cocaine fuelled Friday nights with your colleagues becoming the norm and a promotion to Sydney to help out a new division which you later discovered was rewarded not on merit but because a senior director had broken up with his partner and heard from the Melbourne team that you were fun to socialise with.
78You said during this time when you were 24 your use escalated significantly as did your workload and you began using dexamphetamine tablets during the day and cocaine during the afternoon and nights when you were going out.
Your boss there took you out to socialise three to four nights a week. After
18 months you were offered a job at a firm back in Melbourne where you continued to work long hours and where you also took over the management of your mother's financial affairs, which had become dire.
79You reconnected with friends who regularly used cocaine socially on weekends, saying at this point you noticed there was a significant disconnect between the level of your use and theirs. That is, you were using alone from Monday to Friday and hiding this from friends and then continuing to use with them on weekends. You stated:
"As I worked longer hours my addiction compounded to the point where my monthly salary would be gone within two to three weeks and I was having to withdraw funds via a margin loan against shares that I held to bridge that gap each month".
80You then went on to say:
"When the stock market turned sharply negative over the course of 2015, due to the amount I had borrowed against my shares over the preceding years I no longer had access to funds and was also under significant pressure from mum's portfolio, her only source of income, again going close to disappearing".
81You had known Mr Gallin since you were 15 and he was your supplier in Melbourne.
82He invited you to take up the role in the syndicate. You did that essentially to have greater access at a cheaper rate to the drug to which you had become addicted. In his letter to the court Mr Gallin said he took responsibility for introducing you to the syndicate. He described you as a successful stockbroker and one of his closest friends saying, "I manipulated his addiction and involved him in my crime".
83You were remanded in custody in the Magistrates' Court cells, at the Melbourne Assessment Prison and at the MRC. During this time you underwent withdrawal and in your letter you described being threatened by other inmates and in the last few days being subject to the 23-hour lockdown that occurred at the MRC following the riots.
84On 16 December 2015 you were bailed on strict conditions to the Refocus Residential Rehabilitation Centre where you were taken by Ms Brown. You remained there for six months. The bail conditions stipulated that you could not leave those premises unless accompanied by a staff member. You spent the first three months at the Toorak Residential Rehabilitation Centre engaging in an extremely intensive program described by Refocus senior counsel, Dr Ralph Humphries in his report dated 17 May 2018, which was tendered on the plea. Although situated in Toorak, I understand the premises are very spartan, not at all luxurious and quite small.
85The Refocus program included a structured daily living program, daily group therapy, individual weekly counselling and regular daytime and evening educational sessions and he noted that you were only able to leave the premises when accompanied by a staff member.
86You were then transferred to the advanced program at Refocus' Brunswick premises on 23 February 2016 where you participated for a further three months. Whilst at Refocus you were required to undergo twice-weekly urine drug screenings, all of which proved negative. Those screenings have gone up until the plea hearing. I was informed by your counsel that 180 such screenings have been conducted, all of which have proved negative for drugs. As part of the program you were also required to attend five Narcotics Anonymous meetings per week. Dr Humphries wrote that you made excellent progress in the program, were fully compliant with the structure and committed yourself to the recovery process "with energy and diligence to great effect". He said you made significant progress in your stay at Refocus. Dr Humphries stated, "He demonstrated to me and to other staff a commitment to acting in accordance with his highest values and a readiness to continue his recovery work while living at home". He also noted your weekly outpatient sessions with Ms Brown.
87In her report, Ms Brown noted that when she first met you in custody your immediate concern was about your mother. She said that once discharged from residential rehabilitation you continued to check in at groups at Refocus in Toorak, which you said helped you remain connected to your recovery roots. You have continued this for two and a half years, or more than two and a half years. You have also continued attendance on Narcotics Anonymous meetings progressing within NA to service position. For some time you continued weekly sessions with Ms Brown, which are now fortnightly.
88Ms Brown referred you to psychiatrist Dr Lewis Reibl who has diagnosed you as suffering from an ADHD condition and also continues to treat you. Ms Brown stated that, "Christopher Carron in my view has been exemplary in his recovery. He has availed himself of all that recovery offers. His rehabilitation has been successful and he now presents with advanced insight into his condition". She stated that you were drug free and well ensconced in a positive lifestyle to which I will later refer. She further stated:
"Mr Carron has continued weekly and fortnightly counselling sessions with the writer. He presents as a mature man who has also battled mental illness for the duration of his treatment with undiagnosed ADHD, anxiety disorder and depression now being treated. He has established well with psychiatric with Dr Reibl and has balanced work, treatment and his physical health well over the last two and a half years. This is encouraging and assists the writer in determining that Christopher Carron is now at very low risk or relapse. He is now in a solid position to continue with the work he embarked on two and a half years ago and his prognosis is excellent in my opinion".
89In his report dated 25 May 2015 Dr Reibl noted that you had attended 55 appointments with him stating:
"At the time of his first clinical contact Mr Carron presented as remorseful and incredulous at the recklessness and stupidity that he had displayed in his behaviour. He was then, and has remained, consistently afraid of gaol as his experience in remand had been, to quote his words, 'hell for him'".
90Dr Reibl described you as suffering a severe dependence on cocaine which is now in remission. He conducted testing which he said established beyond doubt that you suffer from ADHD and complex post-traumatic stress disorder which he said related to psychological neglect and severe family disruption due to parental illness and absence. He said you suffered from no personality disorders.
91It appears that Dr Reibl believed use of slow release dexamphetamine precursor stimulant Vyvanse was required medication for your ADHD condition, this was not introduced for the first 12 months as you concentrated on remaining drug free. Eventually this medication was introduced and Dr Reibl described your response to that treatment as "profoundly and extremely important".
He said you had improved concentration, improved clarity of thought, mood improvement and greatly improved sleep. He described you as "an excellent prospect for rehabilitation".
92Both Ms Brown and Dr Reibl were of the opinion that your ADHD condition, in particular, would lead you to find incarceration a more stressful experience than the normal prisoner.
93In the last three weeks of your residential rehabilitation with Refocus your father suffered a massive heart attack. Your bail conditions were varied to enable to you to assist in the running of his business while he recovered. You have since reconnected with your father whose second marriage ended at the time of your arrest and you have been involved in the business ever since, also managing your father's assets and investments to increase his passive income in light of his now physical restrictions.
94Additionally you have become involved in running a small clothing business called "Good CMPNY" which is designed to promote what you described in your letter as a "key message of always staying in good, positive company". You write that the business has turned a profit for the last nine months and you have also become involved in an initiative with the Parkville Youth Justice Centre which rewards inmates showing leadership and positive behaviour traits by gifting them a Good CMPNY jumper "as a reminder to stay on a positive path when they leave". You write that today you have gifted items worth more than $10,000 to this program.
95Since 2007 you have been involved in a relationship with your now fiancée.
Ms Brown noted that she and your mother have on a number of occasions attended counselling with you when you have attended on Ms Brown in order to thrash out the issues not only of your relationship but of the psychological and traumatic factors underlying your drug use.
96It was Ms Brown's view in evidence that she gave on the plea that a crucial issue for you has been relinquishing the responsibility you have always felt towards your mother. Your fiancée also wrote a letter describing your descent into drug use, your immense efforts at rehabilitation and expressing her continuing support for you. Letters from both parents also outlined your rehabilitative progress and their continuing support for you, as did your sister in her most helpful letter to this court. Your sister noted that the stressors in your family life have continued both via your father's illness and your mother's ongoing mental programs, she has continued to relapse, but she noted a significant change in your ability to cope and manage the stress associated with those events. She stated, "Despite these added pressures, Chris has remained committed and determined to recover fully from drug addiction and pave the way for a better life".
97I also received a raft of references from family and friends attesting to your remorse for your offending, your current positive situation and your determination to remain drug free and stay on this rehabilitative course.
98As with Mr Gallin, I am satisfied you have undergone a lengthy, intensive and successful rehabilitation over a long period of time and I am satisfied that your prospects of rehabilitation are, likewise, extremely positive and that in your case the principle of community protection also has a lesser role to play in the sentencing exercise before me.
99It was the prosecution's submission that your offending was a serious example of this crime. The amounts involved being at the upper of the statutory definition for trafficking in a commercial quantity. It was submitted to me that only a term of imprisonment to be immediately served is an appropriate disposition in your case. It was submitted that your role in this enterprise was superior to that of Mr Wong, who as I have already mentioned, received a sentence of seven years' imprisonment with a minimum term of four years and that the disparity of the roles were such that despite the impressive rehabilitation, which is acknowledged by the prosecution, a non-custodial disposition, namely a Community Corrections Order was simply out of the range in your case.
100Additionally, Mr Shaw for the prosecution relied on the decision in Gregory
(a pseudonym) v R [2017] VSCA 151 where the Court of Criminal Appeal declared that sentences for trafficking in a commercial quantity of a drug of dependence had, over time, remained in the mid-range and needed to be increased.101Mr Dickinson QC on your behalf declared that a non-custodial disposition was indeed open:
(a) he pointed to the evidence of the informant in this matter at the committal hearing which was to the effect that, firstly, it was Mr Gallin who received the profits of this enterprise, not you;
(b) that you operated the business in lieu of Mr Gallin on only about six occasions and even then Mr Gallin maintained control by ringing in daily to check during those periods;
(c) that you hardly featured in the material obtained by the optical and listening devices and log but on one occasion were heard talking to Mr Gallin about getting drugs for you; and
(d) the informant stated that when listening in at the flat he could often hear you snorting cocaine and agreed that you were clearly an addict.
102Mr Dickinson said that your case should be distinguished from that of Mr Wong. He noted that Mr Wong pleaded guilty to a charge of trafficking cocaine in a large commercial quantity as opposed to the charge you have pleaded guilty to, which is commercial trafficking, and that was categorised by Her Honour Judge Cannon as "undertaking an important role where he is obviously a most trusted employee". At paragraph 20 of her sentence Her Honour stated to Mr Wong:
"You are not a mere delivery boy who was trafficking at street level to sustain a drug habit but I accept that delivering deals to customers was a major aspect of your work. However you also ran the business phone on several occasions and you were entrusted to collect your designated supply of deals from a hidden location at the unit. You were able to easily step into Mr Gallin’s shoes if and when required and well understood the way that his extensive, well organised business worked".
103Her Honour continued, "On the other hand I accept that your role was well below that of an organiser or manager of the syndicate and you did not source the product or prepare it for distribution". Her Honour then stated:
"All relevant matters considered I sentence you on the basis that you worked primarily as a courier but that you were entrusted with higher duties of a managerial nature when the need arose. You did not profit share but were motivated by substantial financial reward and an ability to buy cocaine cheaply for your own use".
104Her Honour also noted Mr Wong kept meticulous records of his sales.
105Mr Dickinson also relied on the fact that your involvement in this enterprise was entirely motivated by your drug addiction and that satisfaction of that addiction was your only reward. Mr Dickinson placed reliance on the case of Akoka v R [2017] VSCA 214 which stands for the proposition that time in a residential rehabilitation facility, whilst not equating to actual time spent in custody, may be used by a sentencing judge to moderate a sentence.
106In particular Mr Dickinson relied upon the delay in this matter and the rehabilitative progress that you have made. He referred to a number of authorities well known to this court and many of them referred to in the case of DPP v WRJ [2009] VSCA 174, a decision of the Court of Appeal handed down on 3 August 2009. In their joint judgment their Honours Maxwell P, Vincent JA, under the heading, "Delay, Rehabilitation and Fairness", referred to a number of well-known authorities including the decision of Duncan v R (1983) 47 ALR 746 where the Western Australian Court of Criminal Appeal stated:
"Where prior to sentence there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspect of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation".
107Paragraph 20 reference is made to His Honour Maxwell P comments in
R v Merrett, Piggot and Ferrari [2007] 14 VR 392 to the effect that:
"The significance of delay does not depend on whether the delay can be satisfactorily explained or not. Its relevance lies rather in the effect which the lapse of time, however caused, has on the accused. As the judge correctly observed, attention must be focused on issues of rehabilitation and fairness".
108Again at paragraph 18 their Honours referred to the remarks of Street CJ, in
R v Todd (1982) 2 NSWLR 517 and 519-20 where His Honour stated:
"Moreover where there has been a lengthy postponement, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence to the circumstances that he has been left in, a state of uncertain suspense as to what will happen to him when in due course he comes up to sentence on the subsequent occasion and to the fact that sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach. Passage of time between offence and sentence will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. At times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner".
109First, it is my view that the disparity claimed between Mr Wong and you, Mr Carron, is not as extreme as that submitted by the prosecution. Your role was confined, at first blush, to an activity recognised as being superior to that of mere courier, that is, your preparation of drugs for sale and your occasional managing of the phone. In my view however it is quite clear that Mr Wong's role was not that of a mere courier; that he was able, as Her Honour Judge Cannon stated, to easily step into a managerial role when required and in fact did so. Moreover he was dealt with by Her Honour for a charge of trafficking in a large commercial quantity whereas this court is dealing with you on the lesser, although serious, charge of trafficking in a commercial quantity only.
110Secondly in my view Mr Wong's role in the syndicate was of greater length and duration than yours, it being, if you like, more or less a fulltime job for which he was paid and which gave him access to the use of cocaine, a drug to which I note he was not, as you were, addicted. In other words I accept that your role in this syndicate was limited, that you received no profits from it apart from access to the drug to which you were addicted, and that that role was a more limited role than that undertaken by Mr Wong. The authorities make it clear that the fact that a person engaged in drug trafficking in order to service a drug addiction is to be distinguished from cases where the accused person is motivated by profit.
111Thirdly, the issue of delay and rehabilitation was not one which featured in
Mr Wong's case. I also note your comment to Dr Reibl's that your participation in a drug distribution syndicate "seemed to have more of the quality of a social outing with the promise of reward in the form of cocaine for his personal use than of a participation in a serious criminal activity".
112In my view the issues of delay and rehabilitation have great weight in the sentencing exercise before me notwithstanding that I do accept that this was an extremely serious crime committed by you which would ordinarily warrant a term of imprisonment.
113In my view, however, yours is a singular case marked by exceptional rehabilitation and enhancement of your rehabilitative prospects such that it is one of those very rare cases where a non-custodial sentence may be imposed. I note that you conducted a contested committal but that clearly resulted in a settlement of these matters and a plea to the charge before the court, which is a lesser charge in terms of seriousness than that faced by Mr Gallin and Mr Wong. That is, your offending although serious is of a lesser magnitude than that faced by either of them.
114In addition to the evidence of extensive and far reaching rehabilitation that you have maintained over a long period of time I have evidence that both your ADHD and post-traumatic stress disorder would make prison a struggle for you and possibly undo the good work that has been done.
115I note in the reports of both Ms Brown and Dr Reibl you have, in fact, considered the prospect of re-imprisonment and attempted to prepare yourself for it. I am satisfied that you have not come to this court expecting anything other than a custodial sentence to be the likely outcome, although that is not now going to be the case.
116Like Mr Gallin, you too have a prior conviction for recklessly causing injury.
You too were placed on a non-conviction adjournment to be of good behaviour. Again, I do not regard this prior conviction as being relevant for the sentencing purposes of this court and you otherwise have no other prior convictions.
117It is my view that an onerous, long term Community Corrections Order with appropriate conditions meets both the punitive and rehabilitative imperatives of your case. You have been assessed as suitable for such a Community Corrections Order, being described by the Corrections assessor as having engaged well in general discussion about your current circumstances, being cooperative throughout the assessment and answering all questions put to you. You were assessed as a low risk of re-offending. This is the third assessment I have that you are low risk of re-offending.
118You do need to understand, sir, that your offending was extremely serious.
If you had not put in the incredibly extensive efforts that you have, if you had not turned up drug free, if you had not been able to turn up 180 clean urine screens, you too would have been looking at gaol. But this is an exceptional situation. Ordinarily I would not hesitate to gaol you. But as I have said you do not present as a threat to the community. Three experts have found you to be a low risk of re-offending. I do not want to undo the good that has been done. You have pleaded guilty to a lesser sentence and you also have psychiatric conditions, which as I said would make it more likely that that good work could be undone if you are placed in prison. So I am going to therefore sentence you as follows. Could you stand up please?
119You will be placed on a Community Corrections Order for five years. In that time - please correct me if I am wrong, Mr Shaw. You will undertake 600 hours,
I think that is the maximum I can give? It is 600?
120MR SHAW: Yes.
121HER HONOUR: 600 hours of unpaid community work. You will undergo assessment and treatment for drug addiction. That will probably mean that Corrections will simply oversee the drug regime you are undertaking. You will undergo assessment and treatment for mental health difficulties. Again that will probably be via Dr Reibl. There will also be judicial monitoring. You will be coming back to me, I will be getting a report and I will be keeping an eye on how you are going, all right? So I get a report each time. That will be going on for a long time, all right?
122So by the time that you have finished that Community Corrections Order you will have basically been, combined with bail, under supervision for a period of seven and a half years, all right? Unfortunately if you are going to offend in that way that is what happens but at least you are not going in.
123All right, I can only place you on a Community Corrections Order with your permission. I need to outline to you the core conditions of that order. They are, that you must report to Corrections within two working days of the making of this order, that is by Wednesday of this week. Whilst on the order you must not commit any offence punishable by imprisonment. That does not mean if you offend and do not get sent to gaol you will not breach it. If you commit any offence for which theoretically you could be gaoled, like knocking off a box of matches from Woolworths, that will breach the order and I can re-sentence you on this, all right?
124Whilst on the order you must not leave Victoria without the permission of the Community Corrections office. You must report any change of address or employment to the Community Corrections office within 48 hours of the making of that chance. You must report to and receive visits from the Community Corrections office. You must not attend upon the Community Corrections office whilst under the influence of drugs and alcohol and you must obey all lawful directions of the Community Corrections office.
125I have explained to you the special conditions that will be attached to that order. Are you prepared to enter that order?
126OFFENDER CM: Yes, Your Honour.
127HER HONOUR: Can I say I am not surprised. Have a seat, thank you, we will prepare the paperwork. The first judicial monitoring will be at 9.30 on 6 December. Odinarily I would make it a bit sooner but I think, you know, you have got so much support around you I expect that it will be fine. But you are not out of the woods yet, sir.
128All you have done is get on this order and if I can say it as I say to everybody who goes on the order, particularly young men do this, and you are still young enough to do this: they get out, they have got the Community Corrections Order. The great trauma of the court case is over, it is a bid relax and suddenly Corrections becomes a sort of bureaucratic nuisance. They are not a bureaucratic nuisance. There is you, there is gaol, there is the Community Corrections Order. If you do not abide by the Community Corrections Order, you will end up in gaol, which you do not want to. You may find it difficult dealing with Corrections, quite frankly if Corrections say "Jump" you say "How high?" Do you understand?
129OFFENDER CM: Yes, Your Honour.
130HER HONOUR: So I will be monitoring your progress. So do not fall into
"It's all over, I can relax", you cannot. A Community Corrections Order is a difficult, rigorous undertaking. You are going to have a lot of work to do.
You have got the highest level of work hours that I can give you all right?
So, you know, you have still got work to do and as I said it is going to be, all added up, it will be seven and a half years before you are out of the woods and away from supervision. All right, thank you very much.
131I do not have to do a s.6AAA, do I?
132MR SHAW: No you don't, Your Honour.
133HER HONOUR: Thank you very much. All right. I'll just check this out.
134I also make the comment that having reviewed the materials and the authorities and the mandate pursuant to s.5 of the Sentencing Act that if I am satisfied that Community Corrections Order is appropriate in all the circumstances. If I am satisfied that a Community Corrections Order can meet the objectives of the sentencing exercise before me I may not place a person, impose a sentence of imprisonment. All right, thank you, good.
135Mr SHAW: Your Honour, there were some ancillary orders sought the last time when our - water's under the bridge since then. There were some 464 orders and some, I think, disposal orders. I understand they weren't opposed.
136HER HONOUR: I bet you I've lost them. I'm so sorry. I think they might be - let me have a look. I am so sorry, Mr Shaw.
137I going to grant a s.464 - I will grant the order. They have not had samples taken?
138Mr SHAW: I don't know.
139HER HONOUR: All right well you were seeking those?
140Mr SHAW: I was.
141HER HONOUR: I will grant them in court and I will sign those orders and send them to you.
142Mr SHAW: They can be done in chambers certainly.
143HER HONOUR: They can. So I just need - can you stand up each please, gentlemen?
144I am ordering that police take a forensic sample which will be a swab from your mouth. I need to advise you that should you resist the taking of that sample, police may use reasonable force in order to obtain it. Thank you, have a seat. Has Mr Carron had a chance to sign that please, thank you?
145Mr SHAW: Also I understand there were some disposal orders as well. So if they can be made in chambers?
146HER HONOUR: I will sign ‑ ‑ ‑
147Mr SHAW: I don't want to take any more time, Your Honour.
148HER HONOUR: I’m extremely sorry ‑ ‑ ‑
149Mr SHAW: Yes, Your Honour.
150HER HONOUR: ‑ ‑ ‑ Mr Shaw, I have got them, I will assign them in chambers, thank you very much. Is that everything?
151Mr SHAW: Yes, Your Honour.
152HER HONOUR: Thank you.
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