Director of Public Prosecutions v Cook
[2024] VCC 1493
•25 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01644
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KARLIE COOK |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2024 | |
DATE OF SENTENCE: | 25 September 2024 | |
CASE MAY BE CITED AS: | DPP v Cook | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1493 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty plea – traffick commercial quantity MDMA, testosterone trenbolone – traffick phenazolam – possess various drugs of dependence – possess tablet press – make false document – possess fireworks – possess prohibited weapon – source and manufacture steroids – counterfeit Xanax drug business
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981 (Vic) ss 71AA(1), 71AC(1), 71C(1), 73(1); Control of Weapons Act 1990 (Vic) s 5AA; Crimes Act 1958 (Vic) s 83A(1); Dangerous Good Act 1985 (Vic) s 54(5); Sentencing Act 1991 (Vic) ss 5(2)H, 6D, 6E, Sch 1 Cl 4(a)(ii)
Cases Cited:Akoka v The Queen [2017] VSCA 214; Worboyes v The Queen [2021] VSCA 169; R v Todd [1982] 2 NSWLR 517; Davies v The Queen [2019] VSCA 66; Trowsdale v The King [2024] VSCA 168; R v Do [2008] VSCA 199; R v Yacoub [2006] VSCA 203; DPP v Turkovic and Anor [2019] VCC 371
Sentence: Total effective sentence of 9 years and 4 months with a non-parole period of 5 years and 2 months.
6AAA declaration: 13y6m TES with 9y NPP
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Tamburro | Office of Public Prosecutions |
| For the Accused | Mr P. Dunn KC Mr S. Ranjit | Emma Turnbull Lawyers |
HER HONOUR:
1Karlie Cook, you have pleaded guilty to:
i.one charge of attempt to possess a drug of dependence (Testosterone);
ii.three charges of trafficking in a commercial quantity of a drug of dependence (Testosterone, MDMA and Trenbolone);
iii.one charge of trafficking in a drug of dependence (Phenazolam);
iv.one charge of possessing drugs of dependence (a variety of steroids and anabolic steroids);
v.one charge of possessing a tablet press;
vi.one charge of making a false document; and
vii.three summary offences (possession of a range of Schedule 4 pharmaceutical medications, storing unauthorised fireworks without authority, and possession of two controlled weapons or prohibited weapons, an extendable baton and taser).
2You have no prior criminal history.
3The most serious charge on the indictment, I consider, is the trafficking in a commercial quantity of MDMA. Each of the three commercial quantity trafficking charges carries a maximum penalty of 25 years' imprisonment.
4The maximum penalty for the remainder of the offences is set out in the sentencing table[1] to which I refer later in these remarks.
[1] Appendix A – Sentencing Table
Circumstances of Offending
5The circumstances of your offending are set out in the summary of prosecution opening for plea dated 15 August 2024[2]. Through your counsel, you agreed that the contents of that document were accurate.
[2]Exhibit 1
6Between 25 February and 9 March 2022, Australian Border Force intercepted three packages addressed to you in your name, each containing just under one kilogram of testosterone. They all originated from an address in Zhuhai in China. One was sent to your address, and the other two, to addresses which you later admitted to police were associated with friends of yours.
7The total weight of the three packages was 2,917 grams of testosterone[3]. This constitutes the conduct under Charge 1, attempt to possess a drug of dependence.
[3]Package one contained 961.9 grams of testosterone, package two contained 963.5 grams of testosterone, package three contained 991.6 grams of testosterone
8On 13 July 2022 at around 6.00 am, police attended at your home in Oakwood Road and executed a search warrant.
9Inside police discovered a clandestine steroid processing plant.
10In the front study police located a large amount of drugs, false identification documents, fireworks, a baton, a Taser and a large amount of cash and a cash counting machine. The cash and cash counting machine was not the subject of any charge on the indictment. Police also found various printed labels and a number of printers. A receipt in your name to an address in Elinga Court on 'New Dawn' letterhead[4] confirms an order for two pill stamp dies. One was a 'Superman' motif and the other a 'Rolls Royce' motif. Later, police analysed your phone[5] and found the corresponding order confirmation of those items, dated 30 June 2022, less than two weeks prior to the warrant being executed.
[4]Prosecution Opening Schedule A item 2 and additional documents sent by Prosecution on 19 September 2024 containing extracts of the telephone download
[5]On the morning of the sentence, Senior Counsel described this phone as a “drug phone” and the notes in that phone as being Ms Cook’s notes. The search history from the phone includes calls from Ms Cook’s sister Shana Cook – Depositions (‘D’), p1602
11In the downstairs lounge area police located a large amount of drugs, cash, mobile phones and driver licences. Plastic bags with vials and pills were stored in various locations in the loungeroom. Some of them contained labels such as 'Sustanon', 'Equipose' and 'Deca'.
12A tick book was found by police on the circular couch by the TV in the loungeroom[6].
[6]Prosecution Schedule B item 8
13A Louis Vuitton bag found on the loungeroom floor contained a Xanax bottle, $1450 in cash and three SIM cards. Another tick book was found in a pink plastic case on the loungeroom floor. Two Apple Mac lap top computers were found, one in the loungeroom and one on a bedside table[7].
[7]Prosecution Schedule B items 12-19
14Upstairs, one-bedroom was set up with a drug preparation system across two tables which included a saucepan on a hot plate, containers with vials, liquids, tablets and bottles, a glass measuring jug, a red pumping machine with tubes, a white machine with a pressure gauge 'diaphragm' and power cable. Police located large amounts of drugs and other chemicals in this room.
15Among the items seized by police from this room were large quantities of vials containing clear liquid and labels such as 'Test-E, Equipose, Dianabol, Test CYP, Injectable Anadrol' and 'Injectable T-bol'. Other items found in the room were Snap lock bags and bottles containing white substance or tablets labelled ‘Viagra’ and ‘Cialis’.
16Another bedroom housed a white tablet production area with an electric pill press containing powder and produced pills in its catchment container.
17The landing above the stairs was set up as a tablet bottling area. Genuine looking plastic medicine bottles complete with Pfizer labels were being packaged ready for sale. In this area police located one snap lock bag containing a large quantity of purple pills labelled 'Turinabol'.
18In the walk-in robe in your bedroom police located a package of MDMA (994.6 grams). There were various containers in that walk-in robe which included a snap lock bag containing pills and drugs.
19Inside the garage of the property police located and seized a vial of liquid, a rigid industrial shop press and a five litre container of Benzyl Benzoate. These items were not subject of any charges.
20Photographs of each room of the house depicting the various items seized by police were tendered on your plea. They provide testament to an illicit operation involving the manufacture and packaging for sale of various pharmaceutical medications and steroids.
21Plastic tubs containing a variety of different empty glass vials with rubber tops, apparently intended for use with syringes, are pictured in large plastic storage boxes. Bulk quantities of manufactured pills are pictured in large plastic storage tubs. The pills are being bottled in a way designed to imitate the appearance of medications sold in a pharmacy.
22Two additional photographs of two door handles with a key in each were also tendered on the plea. I was told that these were doors to the two drug processing and manufacturing rooms.
23Police placed you under arrest and asked you about the chemicals and the pill press. You told them you did not know and you did not go into those rooms, you had been told not to and that you do not ask questions.
24You participated in a record of interview, the transcript of which was tendered on your behalf.
25In that record of interview you answered mostly 'no comment' to questions asked by police. In particular, when asked who had access to the various bedrooms, you did not provide any comment.
26Police asked you about a large quantity of MDMA found in your bedroom, again you provided no comment.
27You admitted that the two addresses to which testosterone packages were sent to you from China were associated with friends of yours.
28You told the police that you were preparing to move to Queensland to work in the mines but had been unable to make those arrangements because your dog was too old to fly. You also told police that your money comes from winnings at the pokies.
29You told police you did not know what items were in what rooms and that people were coming and going all the time from the house because you were not great on your own so there was always people there.
Role and Culpability in the Offences
30The prosecutor made the following submissions about your role:
(a) That you were operating and involved in a drug business on 13 July 2022[8] in which you were actively involved in the importation, manufacture, preparation, offer for sale and actual sale of various drugs.
(b) That you were a willing and enthusiastic participant in a very large enterprise. The prosecutor provided photographs of envelopes containing cash which were seized by police on 13 July 2022, one was labelled 'Test', which it was submitted stood for Testosterone. Although these were not the subject of a charge, the prosecutor submitted they were evidence of the sale of the drugs found in your house.
(c) The irresistible inference was that you were not only aware of the pill press but that you were actively involved in all stages of the process from manufacture to sale. The prosecutor relied on you being a sole resident of the house and the content of your phone which suggests you played an active role in printing labels, sourcing medicine bottles and providing purportedly pharmaceutical drugs for sale.
[8]Further submissions dated 24 September 2024 para [13]
31The following submissions were made on your behalf[9]:
(a)That you were no higher than a 'storeman' who was acting on instructions. In support of this, Mr Dunn KC referred to the prosecution summary which sets out a message from you to a purchaser looking for Xanax tablets. Your response: 'I’m not allowed to sell any at the moment, I’ll ask again when we get more bottles', was said to demonstrate that you were acting on instructions from someone else.
(b)That you were not involved in the manufacturing process of the tablets but that you assisted with preparation of the Xanax tablets[10].
(c)That you were just a 'gram only' dealer - this was said to be supported by the lack of a tick book. I do not accept that submission as the prosecution summary refers to two tick books located in the loungeroom and there is an electronic tick book in the notes[11], now conceded by your counsel, of the download from your phone. I refer to this later in these reasons.
(d)There was no evidence that you were aware of the weight of the MDMA and no evidence of your fingerprints on the packaging. The MDMA was located in the wardrobe of your bedroom. It was also submitted that there was no evidence on your phone linking you to the MDMA.
(e)There was no evidence that you knew how to use the pill press or congregate the ingredients, possession alone was insufficient to support that conclusion.
(f)A number of aggravating features were absent from your offending. In relation to this aspect, I accept you were not on parole or a Corrections order. I accept there was no evidence of enrichment and that you were unemployed at the time of the offending and not under surveillance by police as a suspected drug trafficker.
(g)A person conducting an 'in-depth knowledgeable sophisticated operation', as alleged by the crown, would not be sitting on the floor smoking ice when the police arrive.
(h)An offender with that type of knowledge would have greater text messages conducting the business with sales to the public.
[9]These were submissions made orally on the plea, supported by written submissions and further submissions provided on 24 September 2024 in response to a request from the court
[10]Defence Further submissions para [8]
[11]Which Senior Counsel agreed on the morning of the sentence was a Tick book maintained by Ms Cook and evidenced sales of “ice” and “GHB” and made reference to her friend Tracey
32I accept the prosecution submissions as to your role for the following reasons:
(a) You were the sole resident in the house.
(b) The two lockable bedrooms containing the clandestine laboratory and the pill press, had keys in the locks when police arrived indicating any person could access the room by turning the key.
(c) A sewing machine is visible next to the pill press and a sequined dancer’s costume in the corner of the room. You told police in the record of interview that you used a sewing machine every day, but that it was the one downstairs, and your counsel submitted you worked as a costume designer;
(d) In the upstairs bedroom converted into a clandestine laboratory, police found a can of soft drink with your fingerprints on it;
(e) The pill press appears to have recently been used. It is inconceivable you would not know it was operating when you were there or that you could not see it;
(f) Your message: 'He said I’m not allowed to sell any at the moment, I’ll ask again when we get more bottles' suggests you were both selling the packaged tablets being manufactured and participating in receipt of the bottles, although possibly subject to direction. The download of your mobile phone includes searches for 'wholesale plastic medicine bottles Melbourne' on 12 July 2022, the day before the warrant was executed[12].
(g) The New Dawn invoice and payment receipt dated 30 June 2022, in your name for the purchase of two pill stamp dies, one Superman, one Rolls Royce, supports the prosecution position of your willing awareness of and preparedness to use the pill press.
(h) There is a promotional image for Xanax tablets with numerous genuine looking bottles on your phone. The image looks very much like an advertisement for sale, complete with a reference to prices and 'great reviews'.
(i) Your phone contained a photograph of a confirmation of a purchase from 'Glass Vials Australia' of an order which included an order for Microcrystalline Cellulose, a product used in the manufacture of pills and supplements. The confirmation provides that an email was sent to [email protected] of the order.
(j) Text messages with a person named 'Ashlynne' from your phone regarding you printing labels and changing the proportion of the labels on your computer when printing confirm your active involvement in the process of preparation of the drugs for sale.
(k) The search history from your phone includes searches on 8, 10 and 12 July 2022 for 'home colour thermal printer' and 'glass vials', and 'companies similar to Plasdene'[13]. In addition, the search history includes reference to, on 23 January 2022, 'Deca, steroid name,' and on 26 June 2022 'TPD-0 die mould for sale[14].' That nomenclature is also referred to in the New Dawn receipt relating to the pill die stamps.[15]
(l) In June 2022 the search history on your phone includes a search for 'original karma Xanax bottle' and 'Pfizer Xanax, what is USP for.'
(m) Extracts of the 'Notes' application in your phone dated 11 November 2019 include reference to 'delivery today for Valium, Xanax' and lists various prices for a large range of pharmaceutical medications in singles and in bulk. Other notes on this date relate to medication prices and quantities of medications left remaining for sale. One note modified on 16 April 2022 contains a website 'alprazolampowdersupplier,' together with an electronic tick book[16]. I refer to the entry that Mr Dunn referred to in the footnote, 'Peat equals 1,020' and so on.
(n) The prosecutor also provided a text message from your telephone sent to the telephone of a Ms Hendy about Ashlynne using your label design. The message attached a screen shot from a group called 'Drugs of Melbourne.' The message reads: 'Yep, I’m crushed, and it gets worse… Ashlynne has started selling my label design. We have already seen an ad in the drug group'.
[12]These were provided by email dated 19 September 2024 to which defence counsel and solicitors were copied. The email confirmed that the prosecutor and Ms Cook’s counsel discussed the matter and it had been agreed that the court could receive the material
[13]D 1599-1601
[14]D 1601
[15]New Dawn Receipt for Order Placed on 30 June 2022 “Superman pill stamp dies for TDP – O pill making machine”
[16]D 1558-1569, 1596-7. Listing numerous names with amounts sometimes in the hundreds of dollars sometimes in the thousands of dollars and one entry reads as follows "Pete equals 1020+110 first ball was supposed to come back with the rest of the money but had 350 in cash to put towards the bill but didn't return with more cash that night -350+600 (a grab you grams on last visits when you grabbed a ball for someone else. You paid for the ball up front but nothing towards your tick bills but the promise you would apparently return with money because you had some of your grams sold to someone didn't come back +900…..(D 1568)
33The conduct the subject of the charge of attempt to possess almost three kilograms of testosterone occurs between 25 February and 9 March 2022. Your name appeared as the recipient on all three packages, one package being sent to your own address and two others to separate address, one of them being the same Elinga Court address to which the pill die stamps were to be sent. This demonstrates your active involvement in sourcing one of the drugs processed at your home. I accept the submission made on your behalf that there was little sophistication associated with it, as you used your own name.
34In the context of the steroid processing plant at your home, together with the contents of your phone, the bottles, labels and glass vials found by police, the only available inference is that you attempted to obtain the testosterone to sell in a drug trafficking enterprise in which you were actively involved on 13 July 2022.
35While you are not to be punished for the matters not the subject of charges, they demonstrate the level and extent of your involvement in the drug business on 13 July 2022.
36I reject the submissions that you were a mere storeman.
37The submission that a person running a sophisticated drug operation would not be smoking an ice pipe when police arrive, is without merit. The experience of the courts is that drug dealers are often drug users themselves.
38I consider the material from the download of your phone to provide overwhelming evidence of your active participation and involvement in sourcing, processing and selling a variety of drugs.
39I find beyond reasonable doubt that:
(a) you were actively and knowingly engaged in sourcing drugs and accoutrements such as medicine bottles, vials, cutting agents, pill die stamps, to enable you to sell purportedly genuine pharmaceutical drugs and a complex variety of steroids and other drugs on the black market for profit.
(b) I also find beyond reasonable doubt that you sourced the pill die stamps commonly used to stamp illicit drug tablets such as MDMA less than two weeks prior to the discovery of the commercial quantity of MDMA in your wardrobe. That links you to that MDMA and to trafficking it.
40The remainder of the charges relate to the various drugs to be knowingly and wilfully sold by you as genuine:
(a) Charge 5 relates to 58,000 Phenazolam tablets weighing over 20 kilograms (52 times the traffickable quantity). The prosecutor described this Benzodiazepine drug as being used in the manufacture of 'fake Xanax'. The estimated potential profit from the sale of these pills alone was $320,000[17]
(b) Charge 6 relates to a variety of steroids totalling approximately 11 kilograms[18];
(c) Charge 7 relates to possession of the pill press which the prosecution submitted was used to manufacture the counterfeit 'Xanax'[19].
(d) Summary Charge 12 relates to a variety of pharmaceutical drugs (670 tablets) including Viagra and Tamoxifen[20], all of which cannot be lawfully obtained without prescription.
[17]Prosecution submissions para [9]
[18]Prosecution submissions para [8](f)
[19]Prosecution submission para [12]
[20]Prosecution submissions para [14]
41If there were others involved in your business, such as for instance the 'he' to whom you refer in the text message in relation to the sale of the Xanax, there is no evidence of the degree or extent of their involvement in the operation, over and above that in the text message.
42I do not accept the matters put on your behalf from the bar table where there is no evidence to support them.
43I reject the submission that your conduct does not create the same level of harm to the community as that of a more experienced and successful drug trafficker who runs a systematic operation[21].
[21]Defence submissions para [24]
44Looking at the crime scene photographs, the indictment, the prosecution opening and the contents of your mobile telephone, it is difficult to imagine a more systematic operation. You were equipped to produce tablets, bottle them or place liquid steroid into vials and affix legitimate looking labels, to enable the drugs to be sold as the genuine article on the black market. You also had possession of a very significant amount of MDMA[22] and were actively dealing drugs, as conceded by your counsel and demonstrated by the prosecution opening, the electronic tick book in the download analysis of your phone,[23] and reference to the two tick books found in your home.
[22]994.6 mixed and 358.056 pure
[23]Defence submissions para [25]
45That phone analysis discloses a significant involvement and participation by you in the operation police found at your home on 13 July 2022. They support a finding that your role in the drug business police discovered, and your moral culpability were high. What serves to mitigate your penalty is that you were not charged with trafficking over a prolonged period of time, and you are being dealt with on the basis of trafficking on a single day, save for the between dates count, Charge 1.
46I do not consider that your addiction to drugs entirely explains the offending, the objective gravity of which is high.
47Your drug addiction may have brought you within drug circles and it may have made you more willing to participate in the enterprise. However, the amount and variety of drugs in your possession, together with the accoutrements for their sale on the black market, place your offending outside the scope of offending usually associated with simple drug addiction. One example in the submissions filed on your behalf was that of a heroin addict who committed an armed robbery to fund an addiction[24].
[24]Defence submissions para [36]
48The offending for which you are being sentenced is far removed from that type of offending. However, given the prosecutor’s concession that the offending was fuelled by your drug addiction, I accept that your addiction had some role to play.
49That, however, does not mitigate your offending but it places it in a category of seriousness below that of a business person who does not use drugs, is far removed from the drug scene and is in it only for profit.
Nature and Gravity of Offending
50The total weight of the testosterone was 8,399 grams. The threshold for commercial quantity is five kilograms. You had almost three and a half kilograms over that threshold. There is no provision for large commercial quantity of testosterone in the Drugs Poisons and Controlled Substances Act 1981 (Vic) (‘the Drugs Act’) s 71AA(1).
51The total weight of the Trenbolone was 5,252 grams. The threshold for commercial quantity is five kilograms. You were in possession of an amount just over the threshold. There is no provision for large commercial quantity of Trenbolone in the Drugs Act.
52As stated earlier, the total weight of the MDMA was 996.4 grams mixed. The threshold for commercial quantity is 500 grams and large commercial quantity is one kilogram. You were in possession of 5.4 grams less than a large commercial quantity.
53There were other illegal steroids in your possession, the quantities of which were not insignificant. These include 3,342 grams of Oxymetholone, 2,893 grams of Drostanolone, and just over one kilogram each of Nandolone and Boldernone.
54Mr Dunn KC submitted that the majority of the drugs were steroids of the types routinely found through prescription from a GP or specialist[25].
[25]Defence submissions para [19]
55I do not accept that submission. There is no evidence to suggest the quality or purity of the steroids in your possession is the same as what one would expect to obtain on prescription in Australia.
56You have pleaded guilty to possession of black market drugs for sale on the black market. The safety and quality of those drugs is not assured by any process.
57With illicit drugs such as MDMA, the buyer is taken to be aware of the illicit nature of the product and its unknown contents.
58In the case of the 'fake Xanax' and other medications bottled and labelled by you, the method of packaging and the labels are highly misleading. The end user would be forgiven for thinking the contents of the medicine bottles were genuine. No doubt that is the intent behind the label design and packaging of the product. People selling drugs in this way place consumers at significant risk to their health.
59I consider that the offence of trafficking Phenazolam is a serious example of offending of this type because it involves the preparation for sale of 58,000 individual tablets (20 kilograms) in very genuine looking bottles with apparently genuine looking labels which you designed. Your mobile phone contained searches for 'Pfizer Xanax USP, what is the USP for' and 'Original karma Xanax bottle.' [26]
[26]D 1601
60The prosecutor submitted that the counterfeit Xanax pills contained a small amount of Phenazolam and an unknown substance.
61There is a significant level of sophistication in the set up at your home. It was equipped for pressing tablets, decanting them into bottles, liquifying steroids and decanting them into vials and placing genuine looking labels onto the product. While the order of testosterone in your name was not overly sophisticated, Charge 1 represents an additional aspect of the enterprise which includes sourcing the raw material for the manufacture of illegal substances for sale.
62The possession of the MDMA for sale is evidence of the diversification of the enterprise to incorporate street drugs.
63While most of the offending is on a single date, I consider the size and nature of the enterprise at your home, together with the large quantity and variety of pharmaceutical and illicit drugs, place it in the mid to high range of seriousness for offending of this type.
64I accept that the trafficking charges are not the most serious examples of this type of offending, as submitted by your counsel, however, I consider they are nevertheless at the higher end of the range of seriousness for this type of offending because of the sophisticated way the items were packaged and labelled and the accompanying intent that they should appear genuine.
65I am unable to make findings about the motive for the false document charge. The prosecution submitted that you were running a side business involving the acquisition of fraudulent vaccination certificates[27]. There was nothing in the crown opening in support of this submission.
[27]Prosecution submissions para [13]
66Aside from assertions from the bar table, there was no evidence to support the submission on your behalf that you were creating fake licences so you could receive COVID vaccinations in exchange for cash. I do not accept those submissions.
67No submissions were made about the fireworks.
Personal Circumstances
68You were born in Geelong. You completed Year 12 and then commenced a nursing degree at Ballarat University which you did not finish.
69I accept the submission made on your behalf that your childhood was difficult and traumatic. You provided this history to Dr Cunningham who assessed you at the request of your lawyers.
70Dr Cunningham’s report does not suggest that your childhood experiences contributed to your offending behaviour in any way. His report does not provide a basis for the submission that your childhood deprivation left you vulnerable to substance use[28].
[28]Defence submissions para [33]
71However, I am prepared to accept as a general proposition that your traumatic childhood contributed to your poor decision making and your desire at age 18 to leave your home environment to go into what Dr Cunningham characterised as a 'dysfunctional relationship'.
72Your sister Shana gave impressive evidence on your behalf. That evidence supported the submissions by our counsel that your mother was emotionally unavailable and abusive and that your stepfather also physically abused you. You and your sister raised your younger siblings as your mother was not maternal and was absent.
73You began using cannabis as a teenager. When you commenced work in the exotic dance industry, you began using cocaine, amphetamine, ecstasy and methylamphetamine.
74Dr Cunningham also referred to your involvement in a hit and run accident in 2019 on the Monash Freeway. You have a back injury as a consequence of that accident. Your sister said that after this you began using more drugs and your contact with her became sporadic.
75During COVID you could not continue working in that industry and you also used GHB, smoked cannabis at night, and were addicted to Xanax. In Dr Cunningham’s opinion, your work in the exotic dance industry brought you into contact with drugs within the industry and a variety of external influences then caused your use to escalate to daily dependence.
76Dr Cunningham did not diagnose any mental illness either arising from your childhood or from more recent events.
77You were almost 39 years old on 13 July 2022 when police executed the warrant and arrested you.
78You have no prior convictions and were placed in custody at the Dame Phyllis Frost Detention Centre. It was submitted on your behalf that you were prescribed Valium to help you cope with the prison system[29]. The report of Dr Cunningham notes that you had been 'hooked on Xanax'[30] for a long time.
[29]Defence submissions para [4]
[30]Exhibit D3 Report of Dr Cunningham at p3
79It was submitted on your behalf that you had battled a 20 year addiction to methylamphetamine and that that was an explanation for the offending.
80I consider that 20 year addiction shows a preparedness to commit drug offences over a significant period of time. Doubtless, it was that addiction which brought you within the sphere of people who could introduce you to the significant offending for which you are being sentenced today.
81Given those matters, I do not accept that prior to these offences you were otherwise of good character. However, I take into account that you have not previously come to the attention of police. This can only be accorded limited weight in mitigation because of the gravity of the offending and your role in it.
82I accept that your first time in custody was traumatic for you. It occurred during the pandemic when prisoners were subject to severe restrictions. You spent 14 days in isolation on remand and had limited contact with your family. You were suffering from drug withdrawal, and I accept the submission that you had experienced, as your lawyer termed it, the 'clang of the prison gates'[31].
[31]Defence submissions paras [47] to [57]
83You were admitted to bail on 28 October 2022 and bailed to a residential rehab facility. You were required to enter into an agreement about abstaining from alcohol and other drugs, attend daily programs, on site and off site, and participate in exercise, education and rehabilitation classes[32].
[32]Exhibit D 5
84You were discharged from that facility on 16 January 2023. During your three month admission you provided clean supervised urine drug screens and participated fully in the program and the recommended 12 step recovery fellowship of which you remain a member to this day.
85Your time on remand will be counted towards your sentence, however, you will receive an additional discount in your sentence on account of spending time on remand during the pandemic and being subject to severe restrictions.
86I also take into account the three months you spent in residential rehabilitation, and I give this full weight. I consider that your participation in the program has significantly assisted you on your path to rehabilitation and to developing strategies to becoming a law-abiding citizen[33].
[33]Akoka v The Queen [2017] VSCA 214 at [106]
Guilty Plea
87The prosecution accepted that your plea of guilty was indicated at an early stage, on 15 September 2023, just prior to the committal hearing, and that that is evidence of remorse.
88Mr Dunn KC submitted you should be eligible for a significant discount on account of your plea being entered at a time when the court was still grappling with the backlogs caused by the pandemic.
89Although most of the backlog from the pandemic had been cleared by September 2023, I moderated your sentence somewhat on account of the utilitarian benefit of your plea at a relevant post-pandemic time[34].
[34]Worboyes v The Queen [2021] VSCA 169
90There is no evidence of remorse over and above your plea of guilty. You have not offered to assist authorities and you have sought to minimise your offending.
Rehabilitation and Delay
91Delay can serve to mitigate or reduce your penalty where you have been left in a state of uncertainty as to what will happen to you and where you have undertaken rehabilitation during that period[35].
[35]R v Todd [1982] 2 NSWLR 517 cited with approval in Davies v The Queen [2019] VSCA 66 at [701]
92The delay between the time of the charges being laid and the ultimate sentence is two years and two months. It has not been suggested that the delay was due to any fault of yours.
93Staff at The Cottage referred you for assessment for ADHD. Professor Ogden diagnosed you with that illness on the background of a history of inattention at school which continued into your adult life. Since starting medication for the condition, Dr Ogden noted that you have been able to attend TAFE and commence employment.
94Your time at The Cottage was spent well. You were subject to urine drug screens which showed that you were abstaining from drug use. You were introduced to a 12-step fellowship which you continue to attend on a daily basis.
95Numerous impressive reports from a number of people at the fellowship were tendered on your behalf. They attest to your commitment to the recovery program, to the significant time you dedicate to service and to helping new-comers and sponsoring recovering addicts. You are trusted to open and close meetings and to safely keep keys to the church where some of these meetings are held. According to your sponsor, you have been clean and sober since 14 July 2022[36].
[36]Exhibit D5
96Your sister also spoke in glowing terms about your participation in that fellowship and the impact it has had on your life. 'I have my sister back' she told the court. I accept her evidence that you have wholeheartedly embraced the program of recovery and are implementing it in all aspects of your life. This has made you a more present and involved member of your family.
97Since March 2024, you have been employed in traffic management. Your employer speaks highly of your performance at work. You attend on time, you have a positive attitude, and have made a significant contribution to the successful completion of a range of projects[37].
[37]Exhibit D6
98I accept that during the two years and two months since being charged you have had these matters hanging over your head and that you have been worried and stressed about the outcome. I also accept that during the delay you have made substantial gains in your rehabilitation and participated in retraining to enable you to work. Although the delay is not inordinate, I have moderated your sentence on account of these matters.
99I accept that your significant involvement in rehabilitation and recovery programs, such as the 12-step fellowship, has had a profound impact on your life. I accept the unchallenged evidence of your sister that during the last two years she has observed you undergoing a substantial change in your behaviour and experiencing a number of personal difficulties with a responsible and adult approach. You did not resort to drug use and you have maintained your employment and your commitment to your rehabilitation, despite those problems.
100I consider these matters to be significant to this sentencing task in two important ways: firstly, they demonstrate that your rehabilitation has already been commenced and is being successfully undertaken. Secondly, they demonstrate that you are addressing one of the reasons or motivations for your offending.
101You had commenced a Drug and Alcohol Diploma through Odyssey House and are hopeful of pursuing a career as a drug and alcohol support worker. That is commendable and shows an ability to apply the lessons you learned from your difficult circumstances for the benefit of others.
102I consider that all the efforts you have made towards your rehabilitation, together with your age and the significant family and social supports you have, make your prospects of rehabilitation very good.
103I have given significant weight to this aspect in arriving at an appropriate non-parole period and head sentence.
104My intention is that there be a significant gap between the head sentence and the time you spend in prison before you are eligible for release on parole. That significant gap should serve to augment your rehabilitation and recovery and facilitate your transition back into the community.
105While there is no fixed ratio between a head sentence and a non-parole period, I accept the submissions made on your behalf that the period on parole should be longer than the usual two-thirds or three-quarters of the total effective sentence.
106I will set a non-parole period that is less than the 55 per cent of the head sentence. I consider that to be in the interests of justice for the following reasons:
(a) You have made substantial progress towards your rehabilitation from drug addiction and a longer period on parole will serve to support and encourage that rehabilitation;
(b) It is in the interests of the community to support the rehabilitation of offenders and to provide them with support after their release from prison;
(c) A longer period of supervision in the community will encourage you to remain offence free on your release.
Sentencing Considerations
107While no two cases are exactly alike, I must sentence you in your individual circumstances. Current sentencing practice is one of the matters I must take into account. The prosecution provided a number of example cases to which I have had regard.
108Sentences imposed for trafficking of commercial quantities of drugs necessarily carry with them the need to deter, not only the offender being sentenced, but also others who might consider engaging in this type of offending. Such sentences must also ensure denunciation of the offending on behalf of the community.
109Those who sell drugs profit from the misery and suffering of others. Your 20 year long battle with methamphetamine addiction places you in a position to know the significant harm from drug use to the user and to those around them.
110The seriousness of the offence of trafficking a commercial quantity of drugs is apparent from its 25 year maximum period of imprisonment.
111Trafficking in a commercial quantity of drug of dependence is a Category 2 offence. The law requires that I impose a term of imprisonment unless certain conditions are made out[38].
[38]S 5(2H) of the Sentencing Act
112It was appropriately submitted on your behalf that any term of imprisonment I impose must involve the setting of a non-parole period.
113Trafficking in a commercial quantity of a drug also attracts the serious offender provisions[39].
[39]Schedule 1 clause 4(a)(ii) of the Sentencing Act
114Section 6D(a) of the Sentencing Act 1991 (Vic) (‘the Sentencing Act’) provides that in determining the length of a sentence of imprisonment for a relevant offence, the court must regard the protection of the community as the principal purpose for which the sentence is imposed.
115The principal purpose of the sentences I impose on Charges 3 and 4 are the protection of the community. General deterrence is also a very important aspect of the sentences on those charges. The prosecutor did not submit that to achieve the purpose of community protection a longer sentence than that proportionate to the gravity of the offence ought to be imposed in your case, and I have not done that[40].
[40]Section 6D(b) of the Sentencing Act
116Section 6E requires that every term of imprisonment imposed by a court on a serious offender for a relevant offence must be served cumulatively on any uncompleted sentence, unless otherwise directed by the court.
117I consider that in all the circumstances of this case, it is in the interests of justice to make orders for partial cumulation only. I regard your significant efforts at rehabilitation to be a key factor in arriving at this conclusion.
118I will now announce sentence.
119Would you stand please, Ms Cook.
120Charge 1. Between 25 February and 9 March, attempt to possess testosterone contrary to s73(1) of the Drugs Act, you will be convicted and sentenced to six months' imprisonment, three months cumulative on the base sentence.
121Charge 2. On 13 July 2022, traffic a commercial quantity of testosterone, 8.399 kilograms, contrary to s71AA(1) of the Drugs Act, you will be convicted and sentenced to 18 months' imprisonment, six months of which are cumulative on the base sentence.
122Charge 3. On 13 July 2022, traffic a commercial quantity MDMA, 994.6 grams, contrary to s71AA(1) of the Drugs Act, you will be convicted and sentenced to six years' imprisonment.
123Charge 4. On 13 July 2022, traffic a commercial quantity, Trenbolone, 5.25 kilograms, you will be convicted and sentenced to 12 months' imprisonment, eight months of which are cumulative on the base sentence.
124Charge 5. On 13 July 2022, traffic a drug of dependence, Phenazolam, 58,000 tablets, contrary to s71AC of the Drugs Act, you will be convicted and sentenced to two years' imprisonment, 12 months of which are cumulative on the base sentence.
125Charge 6. On 13 July 2022, possess various drugs of dependence, 11 kilograms in total, contrary to s73(1) of the Drugs Act, you will be convicted and sentenced to one year imprisonment, four months of which will be cumulative on the base sentence.
126Charge 7. Possession of a tablet press contrary to s71C of the Drugs Act, you will be convicted and sentenced to one year imprisonment, six months of which are cumulative on the base sentence.
127Charge 8. Make false document to the prejudice of another contrary to s83A(1) of the Crimes Act 1958 (Vic) (‘the Crimes Act’), you will be convicted and sentenced to three months' imprisonment wholly concurrent.
128In respect of the summary offences, Charge 12, possess a variety of pharmaceutical drugs, you will be convicted and sentenced to a $1,000 fine.
129Charge 21. On 13 July stored unauthorised explosives, you will be convicted and sentenced to a $500 fine plus 12 penalty units, as required, in respect of one penalty unit or part of a kilogram of explosive, and you had 11.8 kilograms of explosive.
130And finally, Charge 22, possess prohibited weapon contrary to s5AA of the Control of Weapons Act, extendable baton and taser, you will be convicted and sentenced to two months' imprisonment with one month cumulative on the base sentence.
131That makes a total effective sentence of nine years and four months' imprisonment and your non-parole period will be five years and two months' imprisonment.
132I declare that you be sentenced as a serious offender on Charges 3 and 4.
133Pre-sentence detention Mr Prosecutor.
134MR TAMBURRO: 107 days, Your Honour. From 13 July 2022, up to but not including today - - -
135MR DUNN: Agreed, Your Honour.
136HER HONOUR: Sorry, a hundred and - - -
137MR TAMBURRO: Seven, Your Honour.
138HER HONOUR: Pursuant to s6AAA of the Crimes Act, I am required to state the sentence I would have imposed but for your plea of guilty – 13 years' imprisonment with six months. Are there any custody management issues.
139MR DUNN: No, Your Honour – I'm sorry, it's her first time in custody.
140HER HONOUR: There's a medication – yes, first time in custody and your client is on an ADHD medication, would you like me to list that.
141MR DUNN: I would. Your Honour, if that could be possible that would be good.
142HER HONOUR: What is that medication, the report didn't refer to it.
143MR DUNN: I'm just getting Mr Ranjit whose checking it now.
144HER HONOUR: Yes, if you would. So I will note 'Custody management: first time in custody. On ADHD medication' – is that the only medication your client is on. I know she's got a back condition and was on various forms of pain relief.
145MR DUNN: Can Mr Ranjit just approach - - -
146HER HONOUR: Yes, please do.
147MR DUNN: Thank you.
148MR TAMBURRO: Your Honour, while that's being done; the draft forfeiture order was submitted to Your Honour's chambers yesterday - - -
149HER HONOUR: Oh, yes - - -
150MR TAMBURRO: But before Your Honour makes any remarks about that, I understand that's not agreed at this stage.
151HER HONOUR: I see.
152MR TAMBURRO: What I'd be seeking is perhaps the matter be set down for an administrative mention in two weeks' time so parties can continue discussions.
153HER HONOUR: Yes, I can do that.
154MR TAMBURRO: Thank you, Your Honour.
155MR DUNN: The medication is apparently called - - -
156MR RANJIT: Vyvanse.
157HER HONOUR: Vyvanse, yes, I know it.
158MR RANJIT: And Seroquel.
159MR DUNN: And Seroquel.
160HER HONOUR: And Seroquel. They're the only medications.
161MR DUNN: Yes, thank you, Your Honour.
162HER HONOUR: Yes, alright, thank you very much. I will list then the forfeiture order application for mention, what, in one week – or two weeks, how long do you need.
163MR TAMBURRO: I suggested two weeks but I'm in my friends' hands.
164MR DUNN: Two weeks is fine - - -
165HER HONOUR: Is two weeks sufficient.
166MR DUNN: Mr Ranjit is proposing to have a discussion - - -
167HER HONOUR: Yes, alright, what about 16 October.
168MR DUNN: Yes, thank you, Your Honour.
169HER HONOUR: For mention.
170MR TAMBURRO: Yes, that's suitable. Thank you, Your Honour.
171HER HONOUR: Are there any other matters.
172MR DUNN: No, thank you, Your Honour.
173HER HONOUR: Yes, thank you. Ms Cook, I wish you the best of luck and I hope that you are able to maintain your very excellent rehabilitation. You may remove Ms Cook now. Thank you. Yes, I thank the parties.
174MR DUNN: Thank you, Your Honour.
175MR TAMBURRO: As the court pleases. Thank you, Your Honour.
- -
Appendix A – Sentencing Table
| Charge on Indictment | Offence | Maximum Penalty | Sentence | Cumulation | |
| 1 | Between 25 February and 9 March 2022 Attempt to possess testosterone contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (“Drugs Act” ) | 400 penalty units or level 6 imprisonment (5 years maximum) or both | 6m | 3m | |
| 2 | On 13 July 2022 traffick commercial quantity Testosterone (8.399kg) contrary to section 71AA(1) of the Drugs Act | Level 2 imprisonment, 25 years maximum | 18m | 6m | |
| 3 | On 13 July 2022 traffick commercial quantity MDMA (994.6g) contrary to section 71AA(1) of the Drugs Act | Level 2 imprisonment, 25 years maximum | 6 y Base Sentence | ||
| 4 | On 13 July 2022 traffick commercial quantity Trenbolone (5.25kg) contrary to section 71AA(1) of the Drugs Act | Level 2 imprisonment, 25 years maximum | 12m | 8m | |
| 5 | On 13 July 2022, traffick a drug of dependence – Phenazolam (58,000 tablets) contrary to s71AC(1) of the Drugs Act | Level 4 imprisonment (15 years maximum) | 2y | 12m | |
| 6 | On 13 July 2022 possessed various drugs[41] of dependence (11 kg in total) contrary to s73(1) of the Drugs Act | 400 penalty units or level 6 imprisonment (5 years maximum) or both | 1 y | 4m | |
| 7 | Possession of a Tablet press contrary to s71C of the Drugs Act | 600 penalty units of level 6 imprisonment (5 years maximum) or both | 1y | 6m | |
| 8 | Make false document to the prejudice of another contrary to s83A(1) of the Crimes Act | Level 5 imprisonment 10 years maximum | 3 m | Wholly concurrent | |
| Summary Offences | |||||
| Ch 12 | On 13 July 2022 possessed a variety of pharmaceutical drugs including Viagra and Tamoxifen contrary to s36B(2) of the Drugs Act | 10 Penalty Units | $1000 fine | ||
| Ch 21 | On 13 July 2022 stored unauthorised explosive (11.8 kg) contrary to s 54(5) of the Dangerous Goods Act | Maximum penalty of 100 penalty units plus (s 45(2)(b) 1 penalty unit for every kilogram or part of a kilogram of explosive (s39(2)) | $500 fine plus 12 penalty units | ||
| Ch 22 | On 13 July 2022 possess prohibited weapon contrary to s 5AA of the Control of Weapons Act (extendable baton and Taser) | 240 penalty units or maximum 2 years imprisonment | 2 m | 1m | |
| TES | 9y 4m | ||||
| NPP | 5y 2m | ||||
| PSD | 107days | ||||
| 6AAA | 13y 6m | ||||
| 6AAA NPP | 9y | ||||
| Other Relevant Matters Pursuant to section 89DI of the Sentencing Act, on the conviction of Ms Cook for charges 3 and 4 it is hereby declared that she is sentenced as a serious drug offender in respect of those offences. Charges 3 and 4 are (trafficking commercial quantity under s71AA of the Drugs Act and pursuant to Cl4(a)(ii) of Schedule 1 of the Sentencing Act they are relevant offences for the purposes of the serious offender provisions. | |||||
[41]Oxandrolone, Methandionone, Stanozolol, Nandrolone, Boldenone, Drostanolone, Mesterolone
0
7
5