Director of Public Prosecutions v Craig
[2023] VCC 628
•21 April 2023
IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION
Revised
Not Restricted
Suitable for PublicationCase No. CR-22-01648
DIRECTOR OF PUBLIC PROSECUTIONS v LACHLAN CRAIG ---
JUDGE:
Her Honour Judge Ellis
WHERE HELD:
Melbourne
DATE OF HEARING:
5 April 2023
DATE OF SENTENCE:
21 April 2023
CASE MAY BE CITED AS:
DPP v Craig
MEDIUM NEUTRAL CITATION:
[2023] VCC 628
REASONS FOR SENTENCE
---Subject:CRIMINAL LAW
Catchwords: plea of guilty- one charge of trafficking in a large commercial quantity of a drug of dependence-one charge of possession of a drug of dependence-one related summary charge- no prior criminal history-standard sentence offence- significant substance use- increased burden of custody;
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, Control of Weapons Act 1990, Sentencing Act 1991, Confiscation Act 1997;
Cases Cited:R v Verdins (2007) 16 VR 269, Markovic v The Queen (2010) 30 VR 589, Quah v The Queen (2021) 290 A Crim R 136, Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, Polos v The King [2022] VSCA 258, Brown v The Queen (2019) 59 VR 462, DPP v Kumas [2021] VSCA 215, Al Janabe v The Queen [2021] VSCA 252, DPP v Kha [2019] VCC 1682, DPP v Nguyen [2019] VCC 1815, DPP v Dong [2020] VCC 298, DPP v Kane [2020] VCC 612, Worboyes v The Queen [2021] VSCA 169, Power v The Queen (1974) 131 CLR 623;
Sentence: Total Effective Sentence of 7 years and 9 months imprisonment. Non-parole period of 4 years.
---
APPEARANCES:
Counsel Solicitors For the DPP Ms. N Stevic (Plea)
Ms. J Caust (Sentence)Office of Public Prosecutions For the Accused Ms. S Locke Malkoun & Co Lawyers
HER HONOUR:
1.Lachlan Craig, you have pleaded guilty to:
·one charge of trafficking in a large commercial quantity of a drug of dependence, namely cocaine, contrary to section 71 of the Drugs, Poisons and Controlled Substances Act 1981 (the Act) which attracts a maximum penalty of life imprisonment (Charge 1); and
·one charge of possession of a drug of dependence, namely cannabis, contrary to section 73(1) of the Act (Charge 2). The maximum penalty for this offence, where the court is satisfied on the balance of probabilities that the offence was committed in relation to a quantity of cannabis that is not more than the small quantity applicable, and was not committed for any purposes related to trafficking, is 5 penalty units. Here the prosecution concedes that the cannabis was not possessed for the purposes of trafficking.
2.You have also pleaded guilty to a summary charge[1] of possessing a prohibited weapon, namely an extendable baton, contrary to section 5AA of the Control of Weapons Act 1990, which carries a maximum penalty of 240 penalty units or 2 years' imprisonment. You have consented to this charge being heard in this court.
[1] Summary Charge 5.
Mandatory Sentence Provisions
3.Charge 1 is a category 1 offence. Accordingly, the court must impose a custodial sentence. Charge 1 is also a standard sentence offence. The standard sentence is 16 years' imprisonment.
4.You are to be declared a serious drug offender upon your conviction in relation to that charge of trafficking in a large commercial quantity of a drug of dependence.
Circumstances of Offending
5.The circumstances of the offending are set out in a Summary of Prosecution Opening tendered as Exhibit A. On 1 April 2022, police executed a search warrant at your home in Frankston, as part of a targeted police investigation. During the search, police examined a blue Toyota Corolla, registration XTQ 084, which had been rented by you. Inside the vehicle, in the rear footwell, police located a white shopping bag which contained one and a half bricks of white powder, which weighed 1.515 kilograms.
6.Police also located two resealable bags containing white powder (345.4 grams) within a plastic shopping bag in the corner of your bedroom. An extendable baton was located in the top drawer of the bedside table in your bedroom (summary charge). In the kitchen drawers, police located two resealable bags containing cannabis, weighing 15.7 gram and 25.4 grams respectively, along with a resealable bag containing cannabis seeds. The total weight of the cannabis was 41.1 grams.
7.You were arrested and taken to the Frankston Police Station where you were interviewed. You admitted that the resealable bags containing the white powder located in your bedroom were yours, as were the items located in the kitchen including the cannabis seeds. You admitted that you were using the Toyota Corolla which you had rented. You said you were the only one who had accessed the car. In relation to the quantity of cocaine found in the car, you admitted that it belonged to you but did not recall how much the contents weighed. You told police that you had previously trafficked drugs as a form of income when you were struggling for money. You cooperated with police when asked for the pin code for your mobile phone. No further evidence was located on your phone.
8.The drugs were subsequently analysed by the Forensic Services Department of Victoria Police. The total net weight of the cocaine is 1,860.7 grams.
9.The threshold for trafficking in a large commercial quantity of cocaine is 750 grams pure or one kilogram mixed. Accordingly, the quantity of drugs trafficked represents almost twice the large commercial quantity threshold.
Procedural History
10.You were arrested on 1 April 2022 and granted bail with a surety on the same date. You were bailed on strict conditions, initially to reside with your family and later varied to enable you to live with your girlfriend and her mother. You have not spent any days in custody by way of pre-sentence detention. The matter resolved at a committal mention on 9 September 2022 on which date you indicated your intention to plead guilty to these charges.
Personal Circumstances
11.These were set out in written submissions and supplemented in oral submissions during a comprehensive plea on your behalf. You were born in June 1997 and you are now 25 years old. You were aged 24 at the time of the offending. You grew up in a stable and loving family. Your father worked with the National Australia Bank for almost 30 years before taking a redundancy package. He now works as a forklift driver. Your mother is employed as an administration officer.
12.You reported always having a close relationship with your parents but this relationship has become even closer since your arrest. You have two younger sisters who both reside in the family home. Your youngest sister has qualified as a nurse and your other sister works with an insurance brokerage. Neither of your parents, nor your sisters have ever been in any trouble with the law and neither have any documented mental health histories or problems with alcohol or drugs.
13.You attended Dingley Primary School and required additional tutoring due to a diagnosed Auditory Processing disorder. Prior to this diagnosis you missed some crucial learning. You then attended Parkdale Secondary College where you completed Year 11 as a slightly below average student. You had a teachers' aide for English and Maths. You report being bullied at school in relation to your size which significantly affected your self-confidence. You played football for Dingley Football Club from the age of nine until you were 18, but then broke away from football because you were more interested in the party scene.
14.Significantly, when you were aged 15 you lost your best friend, who committed suicide. This event was no doubt shocking and traumatic for you, particularly as you had spent the evening prior to your friend's death in his company, unaware of the significance of any difficulties that he was experiencing. As a result of his death, your mental health declined and you received several months' counselling at Headspace in Dandenong at which time you were diagnosed with symptoms of PTSD relating to his death. You began smoking and using drugs as a way to cope with his passing. During your plea hearing, your father gave evidence in which he described the impact that the death had upon you at such an important time in your teenage years, at a formative stage in your life. A few years later, you lost your grandmother unexpectedly which was incredibly upsetting for you.
15.After leaving school at the age of 16, you commenced a 3 month plumbing apprenticeship but were dismissed. You then completed a four year landscape gardening apprenticeship in Narre Warren. In an effort to earn more money, you sought a change of employment and became involved in concrete polishing, however the work was difficult to find. Most recently you have been employed with Townscape Garden Managers. A reference from your employer, Trevor Busutill was tendered on your behalf. You are described as hardworking and committed to your work. You have developed a friendship with Mr. Busutill and you have been open with him regarding these charges.
16.For a number of years, commencing in your mid to late teens, you consumed alcohol heavily and you were using drugs. You began using cocaine at the age of 21, and your use increased to daily usage of 4 or 5 grams of cocaine a day. You managed to hide this from your family and close friends. Significantly you were such a heavy user of cocaine that you were subsequently diagnosed with nasal perforations. Shortly before your arrest, you were committed to changing your lifestyle due to the damage that cocaine had caused to your physical health. This included extreme pain in your face and sinuses, daily nasal discharge and the disintegration of your septum. However, your severe drug addiction caused you to get into significant debt. You have estimated that in mid-2021 your drug debt was at its worst, being approximately $30,000. This debt is relevant to your reasons for having this quantity of drugs in your possession at the time the search warrant was executed.
17.You have otherwise never been diagnosed with any chronic physical medical condition nor have you been prescribed antidepressants or antipsychotic medication in the past. Following your arrest, you made contact with your general practitioner and you were diagnosed with symptoms of anxiety, depression, and Post Traumatic Stress Disorder. You were offered a prescription for antidepressants but declined that prescription. For four months you were prescribed medicinal cannabis to manage your anxiety, but you are no longer using this medication.
18.Clinical and forensic psychologist Mr Jeffrey Cummins considers that the symptoms of PTSD with which you were initially diagnosed after arrest, have now resolved and have been replaced with symptoms of reactive anxiety and depression. Mr Cummins considers that you continue to ruminate about your friend’s death and in his view, you may have attempted to block it out, or at least reduce the severity of your negative ruminative thinking, by becoming dependent mainly on cocaine and intermittently on other drugs. I note that no reliance is placed on principles as set out in R v Verdins.[2] However I take your mental health into account in a general way.
[2] (2007) 16 VR 269.
19.You commenced a relationship with your current partner, shortly before your arrest. She is a trainee nurse. You began residing with your partner, who moved into your family home after your arrest. In September last year, your bail conditions were changed to allow you and your partner to reside with her mother. You have very recently discovered that your partner is expecting her first child. To that end, your counsel has submitted that your inability to support your partner during her pregnancy during your incarceration, and possibly in the years following the arrival of your child, will cause you considerable stress, which will make prison more burdensome for you. I accept this and take it into account in accordance with the principles set out in Markovic v The Queen[3] noting however that your partner's pregnancy is still at an early stage.
[3] (2010) 30 VR 589.
20.You have no prior criminal history. You are extremely fortunate to have the support of your parents, sisters, extended family, your partner and her mother and a number of friends. A number of character references were tendered on your behalf, and your father gave evidence during the plea. It is clear that your involvement in this offending, your subsequent arrest and the situation in which you now find yourself, is incredibly shocking for them. You have clearly been raised in a close, strong supportive family environment. Your family describe their shock and disappointment in your behaviour, which is inconsistent with the family values instilled in you. The offending is considered very out of character.
21.In the many references tendered on your behalf, you are described as a good-natured person with a kind heart. Your family describe you as hard working, reliable and honest. You are a family orientated person. You are the first to offer assistance to your extended family and have helped your parents with their garden and its upkeep, even whilst you were living outside of their home. It is very clear from each of the thoughtful references that have been tendered in support of you, that you are a much loved son, brother, nephew and partner. Your family is understandably devastated by these events which are entirely of your own making. It would be hoped that knowing that you have let your family down, is incentive enough for you to want to improve yourself and to ensure that you do not find yourself in the same position in the future. This support will be invaluable over the next period of time both whilst you are in custody and upon your release.
22.Your referees also describe the commitment that you have made since your arrest, to change your way of life. As a condition of your bail, you have been required to complete urine screens and these have been clear. You have been careful to ensure compliance with all bail conditions over the past twelve months, including curfew conditions which prohibited you from being away from your place of residence between 10 pm and 5 am.
23.You have openly discussed your offending with your family and have taken full responsibility for your conduct. You have expressed your shame and remorse to those closest to you. Your mother notes that you recognise that by committing this offence, you have contributed to a problem in society which destroys lives. I accept that you are remorseful for your offending. This is reflected in your plea of guilty, and in the many expressions of remorse that you have made to your family, employer and to Mr Cummins.
24.According to Mr Cummins, you have presented as somebody who is quite insightful and who has accepted your legal situation in a mature and responsible manner. You accept that a custodial sentence is inevitable and you emphasised to him that you have already learned your lesson. You have set yourself a goal of undertaking further studies whilst incarcerated with a view to re-establishing yourself in a career when you are released from prison. It is Mr Cummins' opinion that your prospects for long term rehabilitation are favourable, and most probably very favourable.
25.The fact that you have such strong family support, your insight into your offending and acceptance of your responsibility, your lack of prior criminal history and your reported commitment to remaining healthy and to engaging in further studies, all bodes well for your prospects of rehabilitation. With these factors in mind, I consider that you have extremely good, if not excellent, prospects of rehabilitation and that these prospects are even further enhanced if you continue to abstain from drug use.
Nature and Gravity of Offending
26.Trafficking in drugs of dependence in a large commercial quantity is by its very nature, serious. This is reflected in the very high applicable maximum penalty of life imprisonment, which illustrates the seriousness with which this offending is considered by Parliament. It is the most serious type of trafficking under the laws of this State.
27.It is often said that drugs are a scourge on society, and one that is inflicted by those who traffick in illicit drugs. Every day people become addicted, turn to crime to fund their habits and sadly, many people die as a consequence of the grip that addiction has on them. The social evil caused by drugs, in turn places a burden on the police force, the legal system, the prison system, not to mention the health system.
28.As the Court of Appeal noted in Quah v The Queen[4], when Parliament fixed the new maximum penalty of life imprisonment for this offence, it was intended to send the clearest message to would-be traffickers, and to sentencing courts, as to how sternly large-scale drug trafficking was to be punished.
[4](2021) 290 A Crim R 136, 151 [57] (‘Quah’).
29.Counsel for the prosecution on the plea, Ms Stevic has referred to the principles set down in Gregory (a pseudonym) v The Queen,[5] a case involving a charge of trafficking in a commercial quantity, but where the Court of Appeal also referred to the need for sentences for trafficking in a large commercial quantity to increase. This was accepted more recently in the case of Quah.
[5] (2017) 268 A Crim R 1 (‘Gregory’).
30.As noted in Gregory:
As with any category of offending, there is a wide variation in the seriousness of (in that case), commercial quantity trafficking cases, and in the culpability of traffickers. Likewise there is a great variation in the role played by the offender, ranging from a controlling role, to that of a courier or driver. Similarly, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range. [6]
[6] Gregory [97]-[99], and cited in Quah [50].
31.These variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence.
32.In the same way, the offence of trafficking in a large commercial quantity of a drug of dependence is extremely broad. This offence being at the top of the sentencing hierarchy, theoretically there is no upper limit as to the range of quantity of drug. It is trite to say this, but the breadth is reflected in the wide range of sentences imposed for offences of this type.
33.Your counsel, Ms Locke, argues that your offending is toward the lower end of the spectrum of seriousness for this offence. She submits that your offending is best described as the legacy of a recent, severe drug addiction.
34.As noted, your severe drug addiction reportedly caused you to incur considerable debt. At the time of the offending your drug debt was approximately $10,000. You were known as a 'clean skin' to those to whom you owed money. Your lack of prior criminal history meant that you were therefore less likely to come to the attention of police. You were trusted to hold the drugs by those associates as a way of repaying your debt. Your counsel submits that you were at the mercy of those to whom you owed money in terms of how long the cocaine would remain in your possession before the debt was cleared.
35.Pausing there, the prosecution accepts that your role was that of a safe keeper and that you were towards the bottom of the hierarchy.
36.Accordingly, it is submitted that the cocaine was in your possession not for the purpose of sale by you. The prosecution does not dispute that the purpose of the possession of the drugs was for sale by another. You advised the police during your record of interview that you were not trafficking cocaine. The analysis of your phone is consistent with this assertion in that it did not reveal any evidence of trafficking. Indeed, it is not alleged that there was any evidence of profit by you. It is submitted on your behalf that you were at the bottom of the hierarchy of those involved in the trafficking of these drugs.
37.Ms Locke submits that although the total net weight of the cocaine was 1,860.7 grams, the purity of the drug was on average 19 per cent. This is said to be relevant to your culpability in a number of ways. Firstly, it is said to support the submission that you were at the bottom of the hierarchy of persons involved in the trafficking of the cocaine. Further, it is relevant to the extent of harm to the community consequential upon the anticipated future trafficking of the cocaine.
38.Ms Stevic on behalf of the prosecution submits that the amount of pure cocaine, being 346.36 grams, which is less than half the large commercial quantity pure threshold, is relevant to the objective gravity of the offending. However, the prosecution does not concede that the purity level is relevant to the extent of harm to the community.
39.Furthermore, your counsel submits that whilst the total net weight is not small, it is toward the lower end of amounts for which the courts regularly sentence in relation to offences of large commercial quantity trafficking. Ms Locke notes that there was an absence of any sophistication to the offending; very little had been done to hide the drugs. Furthermore, there is a lack of other indicators of trafficking such as the drugs being packed for sale; there were no scales or deal bags, or some of the accoutrements of trafficking; rather, the cocaine for the most part was located as large blocks.
40.In relation to the cannabis charge, the prosecution accepts that this was in your possession for personal use. Finally, the possession of the weapon is attributed to you owing a large drug debt to people who had access to such significant quantities of drugs.
41.Notwithstanding the prosecution's acceptance that you were holding the cocaine for others, the prosecution submits that the objective seriousness of the offending in this case is at the mid-level for this type of offence, particularly having regard to the quantity. I am not persuaded that it meets that description, having regard to the many factors which illustrate the objective gravity.
42.Notwithstanding this, as I have already said, this is an inherently serious offence. You were in possession of cocaine in a quantity that was almost twice the applicable large commercial quantity threshold. Despite this, and on the basis of quantity alone I accept that it is toward the lower end of the spectrum for the charge of trafficking in a large commercial quantity.
43.I have had regard to the various important factors which indicate the seriousness of the offending here, including your role, the duration of the offending and the motivation for your involvement.[7]
[7] See Gregory 151.
·There is no evidence that the cocaine was in your possession for the purpose of sale by you. It is accepted that it was intended for sale by another.
·There is no evidence that you were trafficking in cocaine, either by way of messages within your telephone, or by way of accoutrements usually associated with trafficking such as deal bags, cash, or firearms.
·The other factors that I have had regard to, there is no evidence that you made (or expected to make) a profit from the drugs. Rather you were holding the drugs in order to pay off your own previous drug debt.
·To that end, those more senior in the hierarchy utilised your lack of criminal history and placed the cocaine within your care, in an effort to minimise their own risk.
·There is no suggestion that you played any other sort of role in this hierarchy. For instance, there is no evidence that you were directing others or that you conducted yourself in a manner consistent with someone more senior within the hierarchy. Nonetheless, you still played a vital role in the distribution of drugs, by agreeing to be a safekeeper.
·There is a lack of any sophistication to the offending; the bulk of the drugs were found in a bag in a vehicle that you had rented. There had been little effort made to conceal the drugs.
·Your trafficking, according to the charge, is confined to a single date, albeit that there is no evidence as to how long you had these drugs in your possession. I note however, that what matters when assessing the gravity of the offending, is not the duration of the offender's possession- whether short or long, but its character.[8]
·Whilst the quantity of drug was high, the level of purity in your possession was less than half the commercial quantity pure threshold. As the court noted in Polos v The King[9]:
The proportion of a mixture that constitutes the relevant drug, when it is known, will inevitably be a relevant factor in assessing the gravity of the offending. Describing that amount as a multiple of the qualifying amount for the pure drug is not uncommon and may serve a legitimate purpose in the assessment of the gravity of the offending.
[8] Quah v The Queen [46]-[47].
[9] [2022] VSCA 258 at [62].
44.Further, I note there is no evidence of wealth or assets to suggest that you have made a profit from your involvement in this offending, beyond paying a debt owed to others.
45.With each of these factors in mind, I am of the view that the offending is towards the lower end of the spectrum for what is an inherently serious offence.
Standard Sentence Offence
46.As I have already noted, the offence of trafficking in a large commercial quantity of a drug of dependence is a standard sentence offence. The standard sentence being 16 years' imprisonment.
47.As section 5A of the Sentencing Act 1991 makes clear, the period specified as the standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
48.Section 5B(2)(a) obliges the court to take the standard sentence into account as one of the factors relevant to the sentence. The standard sentence is a matter to which the sentencing court must have regard when imposing sentence.
49.But, as the Court of Appeal clarified in Brown v The Queen[10], section 5B(3) expresses the legislature's clear intention that the obligation to take the standard sentence into account should not otherwise affect the sentencing discretion. It is to be treated as a 'legislative guidepost', having the same function as the maximum penalty. It does not affect the established 'instinctive synthesis' approach to sentencing and does not require or permit 'two stage sentencing'. Further, it does not otherwise affect the matters which the court may, or must, take into account in sentencing.
[10] (2019) 59 VR 462.
50.Further, when fixing a non-parole period in respect of a standard sentence offence, the court must not fix a non-parole period that is less than 60 per cent of the head sentence unless satisfied that it is in the interests of justice not to do so.
51.Finally, I note a court must not have regard to sentences imposed in other cases unless they involve standard sentences other than having regard to the principles set out.
52.I have had regard to the standard sentence for this offence as one of the matters to be taken into account in arriving at the appropriate sentence by the process of instinctive synthesis.
53.Additionally, I have had regard to current sentencing practices for this offence under the standard sentencing scheme. A number of cases (both from this court and the Court of Appeal) were drawn to my attention in which an offender was sentenced for trafficking in a large commercial quantity, since the introduction of standard sentencing for this offence.[11] None of those cases are directly on par with this case, although there were similarities. There were also relevant points of dissimilarity. For instance, in the Court of Appeal decision in Quah, the offender was found to be in possession of a highly pure quantity of methylamphetamine which was 3.8 times the large commercial quantity threshold. He was also found with $90,000 cash, scales, a large number of empty deal bags, an unregistered firearm, ammunition and a number of prohibited weapons which pointed to the offending being a continuing criminal enterprise.
[11] Quahv The Queen; DPP v Kumas [2021] VSCA 215- [LCQ including sales to covert operative, firearms offences, prior criminal history]; Al Janabe v The Queen [2021] VSCA 252 [trafficking LCQ (over 9kg of methylamphetamine, being 12 times the prescribed LCQ) including trafficking on several occasions over a period of months, limited prior criminal history, conspiracy to commit common assault, assistance to authorities]; DPP v Kha [2019] VCC 1682 [a case involving a number of charges including 2 x trafficking in a LCQ and negligently dealing in proceeds of crime being $42,280, where the offender had a relevant prior criminal history for trafficking methylamphetamine and possessing prohibited weapon]; DPP v Nguyen [2019] VCC 1815 [offender pleaded guilty to a number of charges, the most significant being trafficking a LCQ- namely methylamphetamine (4.3kg)- approximately 6 times the LCQ of that substance, admitted one prior matter]; DPP v Dong [2020] VCC 298 [traffick in LCQ namely heroin (2.02kg) which was twice the threshold for LCQ]; DPP v Kane [2020] VCC 612 [traffick in LCQ of heroin, weighing 1,140g ( 1 ½ times the LCQ), offender was storing the drugs, also charged with possessing unregistered handgun and cartridge ammunition, deal with property suspected to be proceeds of crime namely $30,000].
54.A case which may be seen to have a number of similarities to the present case is that of DPP v Kane [2020] VCC 612, a sentence by her Honour Judge Davis, in which the offender was charged with trafficking in a large commercial quantity of heroin (one and a half times the large commercial quantity), which was accepted he was storing for another. He was also charged with possession of an unregistered firearm, cartridge ammunition and dealing with proceeds of crime, namely $30,000. The offender there was in his 40s and had a prior criminal history. In that instance, the offender was sentenced to 8 years' imprisonment.
55.As I have said, each of the cases considered as part of current sentencing practices have their own unique features and no two cases are identical. Nonetheless I have had regard to each of the cases that have been identified by the parties as well as current sentencing practices more generally. Current sentencing practices however are but one of the matters I must take into consideration.
Plea of Guilty
56.Mr Craig, you entered a plea of guilty at the earliest opportunity. You have accepted responsibility for your conduct, and this is consistent with your cooperation with police. Your plea is of considerable utilitarian value. You have spared the community the significant expense of a trial and further, your plea demonstrates a willingness to facilitate the course of justice. It is also evidence of remorse.
57.Your plea of guilty has an additional value given that it was entered during the
COVID-19 pandemic, where the court has faced a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[12] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects. Your plea of guilty should result in a perceptible amelioration of sentence. You are entitled to a substantial discount in sentence both for your plea of guilty itself and taking into account that this plea has occurred during the COVID-19 pandemic.[12] [2021] VSCA 169.
Relevant Sentencing Factors
58.The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offence, your culpability for the offence, and your personal circumstances.
59.The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society. I am to have regard to the principles of parsimony, and I do so.
General and Specific Deterrence
60.General deterrence is an important sentencing consideration in sentencing you for these offences. Those who might be inclined to engage in the drug trade, and traffick in a large commercial quantity of drugs, must understand that such serious criminal offending will attract significant punishment.
61.Specific deterrence has less of a role to play but it is not entirely irrelevant. Just punishment and denunciation must also be given primary consideration.
Submissions on Sentence
62.Both parties agree that I must impose an immediate custodial sentence with respect to Charge 1, having regard to the mandatory provisions of the Sentencing Act. This necessarily involves the imposition of a head sentence with a non-parole period.
63.It is also submitted on your behalf that in this case, it is open for the court to find that it is in the interests of justice to impose a non-parole period of less than 60 percent of the head sentence. In support of this submission, counsel refers to a number of factors including your previous good character, your age, the steps you have taken towards your rehabilitation and your strong prospects of rehabilitation, your plea of guilty and acceptance of responsibility, your genuine remorse, your family support and your personal circumstances.
64.In the circumstances of this case, I consider that it is in the interests of justice to fix a lower non parole period. I note that the prosecution does not agree with the submissions made on your behalf. Specifically I take into account your age, plea of guilty, lack of prior history, remorse, family support, efforts at rehabilitation and I have had regard to the head sentence. In reaching this conclusion, I note that the purpose of parole, as set out in Power v The Queen[13] is to:
provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
[13] (1974) 131 CLR 623 [629].
65.In this case given your age, your rehabilitation is a considerable sentencing factor.
Sentence
66.Taking into account all of the matters that I have identified including the objective seriousness of your offending, your plea of guilty, your commitment to your own reform including your conduct whilst on bail, your prospects of rehabilitation, your personal circumstances including your extensive family supports, balanced with each of the sentencing principles and objectives to which I must have regard, and having regard to the seriousness of the offending, I have determined to sentence you, as follows;
67.On Charge 1, trafficking in a large commercial quantity of a drug of dependence, you are convicted and sentenced to 7 years and 9 months imprisonment.
68.On Charge 2, possess cannabis, the charge is found proven and dismissed pursuant to section 76 of the Sentencing Act 1991.
69.On the summary charge, possess prohibited weapon, you are convicted and fined $500.
70.I fix a non-parole period of 4 years imprisonment. As I have already set out, I consider that it is not in the interests of justice to impose a non-parole period equivalent to at least 60 per cent of the head sentence.[14]
[14] Nachar v The Queen [2021] VSCA 242.
71.I note that there is no pre-sentence detention.
Serious Drug Offender
72.I declare that you are a serious drug offender pursuant to section 89DI of the Sentencing Act 1991.
s6AAA
73.Pursuant to section 6AAA of the Sentencing Act 1991, had you proceeded to trial and been found guilty, I would have imposed a total effective sentence of 11 years' imprisonment with a non-parole period of 7 years.
Ancillary Orders
74.Pursuant to section 78 of the Confiscation Act 1997, I make the disposal order in relation to the drugs and phone seized.
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