Director of Public Prosecutions v Cheng

[2024] VCC 1228

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00110

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW CHENG

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2024
DATE OF SENTENCE:	12 August 2024
CASE MAY BE CITED AS:	DPP v Cheng
MEDIUM NEUTRAL CITATION:	[2024] VCC 1228

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Early guilty pleas – trafficking – methylamphetamine – diacetylmorphine – cocaine – possession - 4-butanediol – testosterone – related summary offences - alcohol use disorder - opioid use disorder - stimulant use disorder – sustained remission – low risk of reoffending – family support – genuine remorse – delay – residential rehabilitation – COVID-19 – high moral culpability – serious offending – low risk of relapse

Legislation Cited:      Sentencing Act 1991

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Akoka v The Queen [2017] VSCA 214; O’Neal v The King [2024] VSCA 129; DPP v Fatho and Ors [2019] VSCA 311; Boulton v The Queen (2014) 46 VR 308; DPP v Zhuang [2015] VSCA 96; Hassall v The King [2024] VSCA 163; DPP v Frewstal Pty Ltd (2015) 47 VR 660;

Sentence:                  149 days imprisonment, 3 year CCO with conditions, 18 month CCO with conditions, $800 fine, $1000 fine, $2000 fine.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Mr P Ironside Solicitor for the Office of Public Prosecutions
For the Offender	Mr J. Dickinson KC	Mr M Kelly Melasecca Kelly & Zayler

HIS HONOUR:

1Matthew Cheng, you have pleaded guilty to the following charges, all of which occurred on 15 February 2022:

·Charge 1, trafficking in a drug of dependence, namely methylamphetamine;

·Charge 2, trafficking in a drug of dependence, namely diacetylmorphine;

·Charge 3, trafficking in a drug of dependence, namely cocaine;

·Charge 4, possessing a drug of dependence, namely 1,4-butanediol and testosterone.

2You are also charged with three related summary offences:

·Summary Charge 13, dealing with suspected proceeds of crime;

·Summary Charge 14, failing to provide information or assistance to police when directed; and

·Summary Charge 15, possession of a controlled weapon.

Circumstances of offending

3The circumstances of your offending are set out in the prosecution summary opening for plea, dated 15 March 2024.  The matters in that summary are not disputed and form the basis upon which you are to be sentenced.

4On 15 February 2022, police arrived at your residence to execute search warrants.  They were let in by your mother, and copies of the warrants were given to you.

5You were placed under arrest after police found a quantity of money within the premises.

6You were searched and police located a Samsung mobile phone.  You were given a direction to provide access to the phone and police explained the nature of the direction, including the possible consequences if you did not provide access.  You refused to provide the passcode to the phone.  This is the basis of Summary Charge 16.

7Police conducted a search of the premises with a drug detection dog.  Drugs were found in the upstairs bedroom which you shared with your wife, Sia Gim.  In that room the following items were found inside a black sports bag:

(a)   a resealable bag containing heroin;

(b)   a resealable bag containing cocaine;

(c)   a bag with 'Culture Kings' branding that contained resealable bags, spoons, scales and scissors;

(d)   two resealable bags containing methylamphetamine;

(e)   a resealable bag containing cocaine; and

(f)    a resealable bag containing heroin.

8In the drawer on the bedside table police found a glass vial containing 1,4‑butanediol and five vials containing anabolic steroids.  Police also found a pair of knuckledusters in that drawer, which is the basis of Summary Charge 15.

9Also found in the bedroom was a large sum of Australian currency located in various shopping bags, boxes and the bedside table.  In a room directly adjacent to your bedroom, police also found a large sum of Australian currency within shopping bags and within your wallet.  They also found a cash counting machine.

10In total, police seized $924,840 suspected of being the proceeds of crime.  Summary Charge 13 is based on that money.

11Drug analysis revealed the following:

(i)225.9 grams of methylamphetamine with purity ranging between 84 to 90 per cent;

(ii)160.4 grams of diacetylmorphine (heroin) with purity ranging from 81 to 82 per cent;

(iii)186 grams of cocaine with purity ranging from 74 to 76 per cent;

(iv)17.8 grams of 1,4-butanediol; and

(v)16.1 grams of testosterone.

12Charges 1 to 4 are based on the above drugs that were located.

13Each of the trafficking charges carry maximum penalties of 15 years’ imprisonment.  Charge 4, possession of a drug of dependence, carries a maximum penalty of one year imprisonment, if I am satisfied that the offence was not committed for the purpose of drug trafficking.  The charge of dealing with suspected proceeds of crime carries a maximum penalty of two years’ imprisonment.  The charge of possessing a controlled weapon has a maximum penalty of one year imprisonment, and the charge of failing to provide information or assistance when directed has a maximum penalty of two years’ imprisonment.

14Following your arrest you were taken to the Box Hill police station.  You were interviewed and answered 'no comment' to police questions.

Personal circumstances

15You were born in December 1987 and you are now 36 years of age.  You were 34 years old when you committed the offences before me and were living in Clayton with Ms Gim and your parents.  Your parents were born in Malaysia but have lived the majority of their lives in Australia.  Your father is an accountant and your mother a registered nurse.  You have a brother and sister, both of whom are employed.  No other member of your family has been in trouble with the law. You continue to live at home with your parents and your wife.

16You completed Year 12 at Glen Waverley Secondary College but did not obtain a sufficient ATAR score to attend university. You instead enrolled in a TAFE course studying marketing and advertising.  You completed only one year of that course.  You were then aged 18 and secured fulltime work at Crown in events and hospitality.  Since then, you have worked at a number of different jobs before starting your own business, in partnership, in digital printing in 2012.  The business partnership failed because of your drug use.  You now work as a form worker and labourer.  You started your current job in October 2023.  It is a fulltime job and based on the reference provided by your direct supervisor, you are highly regarded, demonstrating 'exceptional dedication and professionalism'.

17Following your arrest you were remanded in custody. You were bailed on 13 July 2022.  Your pre-sentence detention is 149 days.

18Following your release, you attended the Harmony House Residential Rehabilitation Reintegration program for a period of 90 days, and on successful completion of that program you attended Harmony House’s four-week outpatient program.

Reports

19Tendered on your behalf was a psychological report of consultant psychologist, Luke Armstrong, dated 3 June 2024.  You were assessed by Mr Armstrong over five hours on 13 May 2024.  You have a significant history of polysubstance drug use and alcohol abuse.  Mr Armstrong notes that you have battled with addiction from the age of 18 to the time of your arrest on the current matters.  He states that you suffer from alcohol use disorder, opioid use disorder and stimulant use disorder, now in sustained remission, and you would not have fulfilled the criterion for these conditions for at least the last 12 months.

20You frankly acknowledged to Mr Armstrong that your business partner kicked you out of the partnership because of your drug use and that, coupled with a failed relationship, was a turning point for you, you admitting to becoming a 'junkie'.  Your criminal record, which commenced in 2015, is consistent with your report that you commenced to offend in the context of a severe addiction.  You reported using at least 0.5 grams of ice daily and heroin every second day, with intermittent binge use of cocaine, MDMA and Xanax.

21Mr Armstrong is of the opinion that you currently present a low risk of relapse and/or offending.  He states that you have instructive insight, that you have more to lose now than ever before, and that this appreciation of loss is a significant protective factor against future offending and relapse.  He also notes that you are attending positively to the three internationally recognised indicators for drug rehabilitation, namely:

(i)positive peer association;

(ii)stable mental state; and

(iii)ongoing treatment engagement.

22Mr Armstrong notes other current positive indicators for continued abstinence, including that you are invested in your current employment for the first time in your life; your partner, a relatively minor drug user, has desisted from any drug use and has made it clear that she will not tolerate you using drugs; you are experiencing a corrective relationship with your family and enjoy their ongoing support; you have alternative interventions and support mechanisms in place to manage your mental health; and you have demonstrated an ability to attend those interventions for close to two years without relapse.

23Tendered on your behalf is a report from Carlo La Marchesina, Clinical Director and General Manager of Harmony House.  

24Mr La Marchesina gave evidence at the plea hearing. He said that Harmony House is a residential treatment program aimed primarily at those suffering alcohol, drug and mental health issues.  You were ordered to attend Harmony House as a condition of bail. Its program runs for 90 days, during which time clients are expected to attend all scheduled activities, to participate actively in their own recovery, and to assist others with their recovery.  Participants are not allowed to leave the property without permission and without being accompanied by a staff member or senior peer.  There are significant restrictions regarding access to and use of mobile telephones. Visits from family members only are permitted each Sunday during the program.  Apart from the usual daily activities, there are also nightly meetings of Narcotics Anonymous and Alcoholics Anonymous.  Counselling takes place on a one-to-one level and in group sessions. At the conclusion of the program there are several options, including participation in an outpatient program. 

25Mr La Marchesina said that while on the program you were very compliant, disciplined, self-motivated and expressive in group and individual counselling sessions.  During your residential period you were tested for the use of illicit drugs and did not return any positive results.  Upon completion of the residential program, you completed Harmony House’s four-week outpatient program which involved personal attendances as well as attendances via Zoom link.

26In Mr La Marchesina’s opinion, you are locked into your new way of living, but he noted that rehabilitation is an ongoing process that requires vigilance. He was optimistic that you will remain on your current trajectory.

27Mr La Marchesina considered your progress to date would be challenged if you were returned to gaol.  He commented on the risks of an anti-social environment and that you would lose those motivators to stay clean and sober, namely, your work and supportive family.

28Also tendered on your behalf was a report of Nadia Barbagallo, counsellor and addiction specialist, dated 6 June 2024.  Ms Barbagallo also gave evidence at the plea hearing.

29You commenced treatment with Ms Barbagallo on 28 October 2022 after completing the Harmony House programs.

30Ms Barbagallo took a detailed history from you, focusing on your drug and alcohol use and the difficulties such use has posed for you over a number of years.  She stated that you have made significant and considerable progress regarding drug and alcohol use issues. You initially attended weekly counselling sessions until April 2023.  The sessions were reduced to fortnightly from May 2023 and further reduced to monthly in August 2023.

31Through your counselling you have identified triggers for your drug and alcohol use and have completed a relapse prevention plan.  Ms Barbagello noted that you engage in regular exercise, follow a routine, cook and socialise with positive peers as ways to alleviate stress.  She also noted that you have the support of your partner, immediate family and positive peers.  You cite those significant relationships as your motivation to remain abstinent.  Throughout your treatment with Ms Barbagallo, you completed twice-weekly urine drug screens between October 2022 and November 2023, and weekly screens from November 2023.  As at the date of her report, you had completed 124 screens in total, none of which resulted in the detection of drugs other than lawfully prescribed medication.

32In Ms Barbagallo’s opinion, you are at low risk of relapsing, and she notes you are in the maintenance phase of treatment in which you demonstrate the ability to manage life stressors without resorting to drug and alcohol use.

33Ms Barbagallo considered it significant that you are now in full-time employment.  She stated you are committed to remaining abstinent from drugs of addiction. She also noted the significant supports in place from your wife, parents and pro-social friends.

34Regarding your approximate five months on remand, Ms Barbagallo stated that it was an 'eye-opening' experience for you. 

35In Ms Barbagallo’s opinion, a return to gaol now would be detrimental to the progress you have made over the last two and a half years.

Submissions

36Mr Dickinson KC, who appeared on your behalf, submitted that a community correction order, with or without time served, adequately addresses all relevant sentencing considerations. 

37Mr Dickinson placed particular emphasis on the following matters in mitigation of penalty:

(i)Your pleas of guilty entered at the first reasonable opportunity;

(ii)Your remorse as evidenced by your pleas of guilty, the rehabilitation you have undertaken, the observations and opinions of Mr Armstrong, Mr La Marchesina and Ms Barbagello, the observations of your character referees and your current efforts at work;

(iii)Your treatment undertaken and rehabilitation achieved to date. More specifically, Mr Dickinson submitted you have rehabilitated yourself from addiction to drugs and that your prospects are excellent; and

(iv)The delay between your arrest and sentencing, now well in excess of two years, during which time you have undergone, it was said, a transformation and exceptional progress has been made.

38Regarding the time you spent in residential rehabilitation, Mr Dickinson relied on the decision in Akoka v The Queen[1] submitting that the 90-day period may be taken into account. 

[1] [2017] VSCA 214.

39Mr Dickinson also submitted that the 149 days you spent on remand were rendered more onerous because of restrictions in place because of the COVID-19 pandemic.  Your pleas of guilty, he submitted, were also entered at a time when this court’s processes were being impacted by the effects of the pandemic.  Mr Dickinson stated that a plea offer was made on 1 February 2023 and essentially reflected the charges to which you have now pleaded guilty. 

40Mr Dickinson submitted you do not have an extensive criminal record. You first appeared at the Dandenong Magistrates Court on 15 September 2015 in relation to charges of possessing heroin, amphetamine and cocaine, dealing with property suspected of being the proceeds of crime, possessing a prohibited weapon without exemption or approval, and possessing a controlled weapon.  Without conviction, you were ordered to pay $1,000 to the Court Fund and to continue drug treatment.

41You next appeared at the Moorabbin Magistrates Court on 11 December 2017, on three driving charges and a charge of handling stolen goods.  You were placed on a community correction order for a period of 12 months.

42Your last conviction was at the Dandenong Magistrates Court on 31 January 2020 for possession of cocaine, GHB and MDMA.  You were convicted and fined $800. 

43Mr Dickinson did not seek to play down the seriousness of your current offending but submitted that in light of the steps you have taken to rehabilitate since being charged, together with the other matters put on your behalf, a non-custodial disposition was appropriate. He also noted that since being on bail you have complied with all of its conditions, including curfew, reporting and urine analysis.

44Mr Roper, who appeared on behalf of the prosecution, relied upon the matters set out in his written outline, Exhibit P2.  He submitted that your offending was serious and that the trafficking offences were at the higher end of the spectrum. This submission was based, in the main, upon the quantities of drugs you possessed for the purpose of trafficking. He also submitted that your offending was not committed on the spur of the moment, but rather, required planning and premeditation.  Regarding the summary charge of dealing with property suspected of being the proceeds of crime, Mr Roper submitted that the amount of cash held by you was substantial.

45Mr Roper referred to the Sentencing Advisory Council of Victoria’s Sentencing Snapshot No. 267.  He noted that 81.8 per cent of persons sentenced in the County and Supreme Courts of Victoria for trafficking in a drug of dependence between 2016 and 2021, received a sentence of imprisonment, and of those 20.8 per cent received a combination sentence.  Fifteen per cent received a community correction order.  Mr Roper noted that imprisonment terms ranged from one day to five years and the median length of imprisonment was two years.

46Mr Roper submitted that the principles of general deterrence, denunciation and just punishment were highly important in respect of drug trafficking where a significant quantity of drug is involved.  He also submitted that specific deterrence was important given the scale of your offending, notwithstanding your 'modest' criminal history.  Mr Roper accepted that your prospects of rehabilitation were positive given the significant progress you have made while on bail.

47Mr Roper submitted that a term of imprisonment with a non-parole period is necessary to give effect to the relevant sentencing purposes and to reflect the objective gravity of your offending.

Sentencing considerations

48Trafficking in a drug of dependence is an inherently serious offence. This is reflected in the maximum penalty of 15 years’ imprisonment that may be imposed.

49You possessed, for the purpose of sale, a total quantity of methylamphetamine in the vicinity of four times the commercial threshold of a pure quantity of that drug.  The commercial quantity threshold of diacetylmorphine is 50 grams pure of that drug.  You possessed 2.6 times that quantity.  The commercial quantity of cocaine is 250 grams pure.  You possessed approximately half that quantity.  However, I must keep in mind that you are not charged with trafficking in a commercial quantity of any of those drugs.  In assessing the objective gravity of your offending, I also have regard to the fact that the offending relates to a single day.

50Regarding Charge 4 on the indictment, namely, the possession of 1,4-butandiol and testosterone, it was not submitted by Mr Roper that your possession of those drugs was for any purpose relating to trafficking. I am satisfied that you did not possess those drugs for purposes of trafficking. Thus, the maximum penalty on Charge 4 is one year imprisonment.

51As stated, Mr Dickinson did not suggest that Charges 1, 2 and 3 were not serious instances of trafficking.  He noted, however, that you are charged in relation to each offence on a single day and that the offending occurred in the context of you being in the grips of a serious addiction problem.

52With regard to the summary charge of dealing with suspected proceeds of crime, no issue was taken that it represented a significant amount of money.  Mr Dickinson highlighted the fact that the charge relates to proceeds that are suspected only of being the proceeds of crime, hence the relatively low maximum penalty.  Nevertheless, I am of the opinion that this is a serious instance of the crime.

53In assessing your level of moral culpability, I accept Mr Roper’s submission that it is high.  I also accept that your offending on each of Charges 1 to 3 must have involved pre-meditation and planning. While I accept that you were in the grips of a serious drug addiction when you offended, your trafficking must also have had a commercial motive given the quantities of drugs involved.

54Your offending overall was serious.  It is well-recognised that drug trafficking is a scourge on the community and most often impacts upon its most vulnerable members and their families.  Considerations of general deterrence, denunciation, just punishment and protection of the community are significant matters to which I must have regard in the sentencing synthesis. Others who are minded to engage in similar offending should understand that they risk stern punishment.

55It is not disputed that you indicated your pleas of guilty at the earliest reasonable opportunity.  The court and community have been spared the cost and time of a committal hearing and trial; witnesses have been spared from having to give evidence.  Your pleas of guilty reflect an acceptance by you of responsibility for your offending, and you have, by pleading guilty, facilitated the course of justice.  Your pleas have significant utilitarian benefits to the court and community.  Moreover, they were entered at a time when the COVID-19 pandemic was having a significant impact on the administration of justice.  As was stated in Worboyes v The Queen:[2]

'A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'[3]

[2] [2021] VSCA 169.

[3]Ibid, [39].

56As was recently affirmed in O’Neal v The King,[4]  the Worboyes’ principle may apply having regard to when a guilty plea was indicated.  I accept the application of this principle in your case.  This court was still dealing with the backlog of criminal cases caused by the pandemic on 1 February 2023, the date on which you indicated your pleas of guilty to the current charges. The sentence to be imposed must meaningfully give effect to this principle and result in a perceptible amelioration of sentence. 

[4] [2024] VSCA 129.

57I accept that your pleas of guilty are indicative of your remorse for your offending, as are the significant steps you have taken towards your rehabilitation. 

58Your remorse is relevant to my assessment of your prospects for rehabilitation.  Mr Dickinson submitted that your prospects are excellent and relied upon your significant efforts to rehabilitate following your release from custody.  I have already referred to the professional assistance you obtained and continue to obtain. The bundle of character references tendered are also relevant to my consideration of your remorse and prospects.

59Mr Lizza, your direct work supervisor, provided a reference dated 19 June 2024.  He confirms that you commenced working with the company in 2023.  He states you have consistently demonstrated exceptional dedication and professionalism in your work.  You have consistently shown a strong eagerness to learn and grow within the company and the industry.  Mr Lizza is aware of the charges against you and does not consider they reflect your current behaviour and character.  Mr Lizza states you have expressed your deep remorse and regret for your offending and have shown a sincere desire to make amends.

60Calvin Huang has known you for more than 20 years.  Throughout that time, he states you have demonstrated integrity, respect and commitment to your family and friends.  He is aware that over the last five to ten years you have faced significant challenges battling your drug addiction.  You have confided in him your profound regret, and the significant impact your offending has had on your life and those around you.  He states you have been genuinely reflective about your offending and you are committed to turning over a new leaf.

61Your parents, Robert and Carol Cheng, were present in court during the plea hearing. They state they have witnessed through your words and actions your remorse.  They confirm that to their knowledge you have remained clean of drugs and have complied with your conditions of bail.  Your parents and siblings will continue to support you whatever the outcome of this sentencing.

62Your partner’s sister, Jiya Gim, and her husband, Stephen Nguyen, have also provided a reference. They write that you have expressed sincere remorse to everyone affected by your offending.  Furthermore, you have shown a strong willingness to make amends for the harm you have caused.  They have noted your deep interest in the construction industry in which you are now working and state you have developed a positive outlook on life, which includes working and maintaining your health. 

63Your friend, Brian Tang, has known you for 20 years.  He states you have always struggled with drug addiction.  He emphasises that you are now changed.  You have expressed your remorse for your offending, and to his knowledge, you are now clean of drug use and not associating with negative peers. 

64In my opinion, you are genuinely remorseful for you conduct and your prospects of rehabilitation may be assessed as good to very good.  You have demonstrated your commitment to leading a good and drug free life over a not insignificant period during which you engaged in appropriate drug treatment. You have the support of your family and your partner, and you are in full time employment. However, you are still undergoing treatment, and according to Ms Barbagello, continue to require treatment.

65I also have significant regard to the almost five months you spent on remand, your first ever experience of gaol, under COVID-19 restrictions. I consider that time on remand will have operated to deter you from further offending, and coupled with your rehabilitative efforts to date, the need for specific deterrence may be significantly moderated.

66In Akoka, the Court stated that 'residency at a rehabilitation facility has the potential to significantly assist an offender’s rehabilitation'.[5]  Having heard the evidence of Mr La Marchesina, I am satisfied that your residency at Harmony House, and the additional four weeks in which you participated in the outpatient program, have greatly assisted you in your desire to overcome drug dependency.

[5] At [106].

67I am also satisfied on the evidence that your residency at Harmony House involved significant restrictions on your liberty. I have already referred to those restrictions earlier in these sentencing reasons.

68The court in Akoka also stated:  '[a]lthough residency at a rehabilitation facility has punitive elements, credit for it cannot be given in the same way as pre-sentence detention'.  The court added that 'residence at a rehabilitation facility, no matter how restrictive and punitive, is not equivalent to time spent in custody. It will not ordinarily result in a deduction of the entire period of residency from a custodial sentence.'[6] Nevertheless, the time you spent at Harmony House is a relevant sentencing consideration, for reasons of both its rehabilitative benefit as well as its punitive impact.

[6]At [111].

69It is also important to acknowledge your continued counselling with Ms Barbagello, that you are in the maintenance phase of treatment and her opinion that you are at low risk of relapsing.

70I must also have regard to the time you have been on bail in the community.  You have complied with stringent bail conditions, including reporting, urine testing and a curfew, in excess of two years. 

71As stated, your counsel relied on the delay between you being arrested on these matters on 15 February 2022 and you being sentenced. The delay is not in any way attributable to you. While the delay could not be regarded as inordinate, I do have regard to the fact that for two and a half years you have had these charges hanging over you, with your fate uncertain, and that during this time you have made significant efforts to rehabilitate.

72Your efforts in coming to terms with a longstanding addiction over the last two years must be viewed as considerable and provide good reason for optimism concerning the risk of you re-offending.  If you are able to be fully rehabilitated, then not only would that serve your interest and that of your family, but more importantly, it would serve the long-term interests of the community. I accept that should you be returned to gaol, the rehabilitation you have achieved to date may be set back considerably.

73As earlier stated, Mr Dickinson submitted I should sentence you to a community correction order. He referred me to the decision of DPP v Fatho and Ors[7] where the Court stated, in the case of one of the three offenders, the following:

'First, he had no prior convictions; secondly, he had not offended while on bail; and thirdly, he had already made remarkable progress in his rehabilitation. It was open to her Honour, in our respectful opinion, to impose a sentence which would, in the manner explained in Boulton, achieve the sentencing purposes of punishment and rehabilitation simultaneously.

As the court there explained, the advantage of a non-custodial sentence is that it demands of the individual that he 'take personal responsibility for self-management and self-control'. In circumstances such as these, a community correction order both enables and requires the offender to receive appropriate treatment for the conditions which were causative of the offending. Her Honour was rightly concerned to maintain, rather than interrupt, Huynh’s strong progress towards rehabilitation, as that will minimise his risk of re-offending and thus advance the public interest in community protection. It was for those reasons that we dismissed the Director’s appeal against Huynh’s sentence.'[8]

[7] [2019] VSCA 311.

[8] Ibid [75]-[76].

74Although you have prior convictions, I do not consider that they should preclude such a consideration in your case. Importantly, you do not have prior convictions for trafficking in drugs, nor, having regard to the penalties imposed, does it seem that your earlier offences were serious instances of such offending.

75In Boulton, the court stated:

'It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide).  The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.'[9]

[9] Boulton v The Queen (2014) 46 VR 308 at [131].

76I am required also to have regard to current sentencing practice in my determination of an appropriate sentence. I have had regard to the sentencing statistics provided by Mr Roper, the sentencing decision of Fatho and Ors, to which Mr Dickinson referred, to a number of sentencing decisions of this court and the Court of Appeal, as well as a number of sentencing summaries set out in the Judicial College of Victoria's Sentencing Manual. My review of the cases, particularly those involving drug trafficking, show immediate terms of imprisonment are often imposed, but not always.

77As was said in DPP v Zhuang:

'[s]entences passed in other cases are not precedents which must be followed unless they are capable of being distinguished. Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case …'[10]

[10] [2015] VSCA 96 at [30].

78At the conclusion of the plea hearing, and without deciding at the time whether I would accede to your counsel’s request, I had you assessed for a community correction order.  Since then, I have received an assessment report stating you are suitable for such an order.  I note you reported to the assessing officer that you committed the offences because you were offered money and/or drugs.

79After much consideration I have decided that a combination sentence of gaol equivalent to your pre-sentence detention and a community correction order is appropriate. I have come to this view given the significant efforts at rehabilitation you have made over the last two years. I am satisfied, on the evidence, that you have been abstinent of all illicit drugs since your arrest and that while you still have some way to go towards full rehabilitation, to return you to gaol now would significantly risk undoing the positive steps you have taken over the last two years. In my opinion, the protection of the community will be best served with your complete rehabilitation. The combination sentence proposed will, in my opinion, satisfy each of the sentencing objectives.

80In determining the sentence, I have regard to the fact that each of the trafficking offences, based on you being in possession for sale of the various drugs on 15 February 2022, occurred at the same time and form a series of offences of the same or similar character. I have considered the Court of Appeal’s decision in Hassall v The King[11] and although the indictment contains only a small number of charges, I am of the opinion that it is appropriate in the circumstances of this case to impose an aggregate sentence in respect of Charges 1, 2 and 3. To do otherwise would, I consider, be an artificial exercise, particularly given my decision not to impose any further period of incarceration; the fact that I am imposing a combination sentence; and my ability to impose a single community correction order in respect of two or more offences.[12] If I was to impose separate sentences on Charges 1, 2 and 3, I would need, I consider, to impose artificial orders of cumulation.

[11] [2024] VSCA 163.

[12] Sentencing Act 1991 s. 40(1).

81I note that in DPP v Frewstal Pty Ltd,[13] in a passage referred to by the Court in Hassall, Maxwell P stated:

'The kind of case for which an aggregate sentence is appropriate is one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences, and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality. The archetypical example is the case of multiple offences of burglary and theft committed over a relatively short period, where an aggregate sentence is a 'more flexible and pragmatic' way of reflecting all of the offender’s conduct'.[14]

[13] (2015) 47 VR 660.

[14] Ibid [44].

82It is also appropriate in the circumstances of your case to apply the totality principle to ensure that the overall sentence is just and appropriate.

83Mr Cheng, please stand.  And please listen carefully to the conditions of the community correction order.

84On Charges 1, 2 and 3, you are convicted, and I intend impose, an aggregate sentence of 149 days’ imprisonment.

85I also intend to place you on a community correction order for a period of three years with the following conditions. I may only do so if you agree.

86The mandatory conditions are as follows:

·You must attend at the Dandenong Community Correctional Service’s office within two clear working days after the commencement of this order;

·You must not commit another offence for which you could be imprisoned during the time that the order is in force;

·You must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations 2021;

That means you must not attend at the Office of Corrections, or any place to which they direct you to attend, under the influence of alcohol or drugs;

·You must report to and receive visits from the Secretary or his or her delegate;

·You must let a Community Correction officer know within two clear working days of you changing your address or job;

·You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate;

·You must obey all lawful directions from and directions of the Secretary or his or her delegate.

87The conditions that will also apply, in addition to the mandatory terms, are as follows:

·You must perform 250 hours of unpaid community work over a period of three years, as directed by the regional manager;

·I order that 50 hours of treatment and rehabilitation satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. If you fail to comply with this order the Secretary to the Department of Justice, or his or her delegate, may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act;

·You must be under the supervision of a Community Correction officer for a period of three years;

·You must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the regional manager;

·You must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager;

·You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager;

·You must re-appear at this court for a review of your compliance with the order as directed by the court.

88I should also caution you that should you breach the order you will be brought back before me to be re-sentenced on the original charges and to be sentenced for a charge of failing to comply with the conditions of a community correction order, and that in itself may carry a term of imprisonment.

89Now in relation to Summary Charge 13, you are convicted, and I intend to place you on a community correction order, for a period of 18 months, with the same conditions as those that I have imposed on Charges 1, 2  and 3, save that the unpaid community work you will be required to perform on Summary Charge 13 is 100 hours.

90To be clear, the order will run for the same period as that imposed on Charges 1, 2 and 3, but the unpaid community work will be cumulative on the hours ordered on Charges 1, 2 and 3.

91On Charge 4 on the indictment, you are convicted and fined the sum of $800.

92On Summary Charge 15, you are convicted and fined the sum of $1,000.

93On Summary Charge 16, you are convicted and fined $2,000.

94Pursuant to s18 of the Sentencing Act, I declare that the period of detention that you have already served for these offences is 149 days.

95Had it not been for your pleas of guilty the sentence I would otherwise have imposed is one of three years with a two year non-parole period.

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