Director of Public Prosecutions v Cutajar
[2022] VCC 1879
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00786
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AIDAN CUTAJAR |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2022 | |
DATE OF SENTENCE: | 27 October 2022 | |
CASE MAY BE CITED AS: | DPP v Cutajar | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1879 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Trafficking in a drug of dependence, Contravening a conduct condition of bail
Legislation Cited: Sentencing Act 1991; Bail Act 1977
Cases Cited:Worboyes v The Queen [2021] VSCA 169; of R v Verdins & Ors (2007)
16 VR 269Sentence: 8 months imprisonment and placed on a Community Corrections Order for a period of 2 years. Convicted and fined the amount of $750. Ancillary orders made.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. M. Cookson | Office of Public Prosecutions |
| For the Accused | Ms M. O'Brien | Hargreaves & Partners |
HER HONOUR:
1Aidan Cutajar, you have pleaded guilty on indictment to a charge of trafficking in a drug of dependence, namely methylamphetamine.
2You have also entered pleas of guilty to two summary offences of contravening a conduct condition of bail.
3In sentencing you for your crimes I am obliged to consider the maximum penalties for the offences which you have committed. The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment.
4The bail offences each carry a maximum penalty of three months imprisonment.
5These maximum penalties reflect the seriousness with which Parliament regards the offences you have committed.
The offending
6
The circumstances of your offending were set out in a document entitled
“Prosecution Opening Upon Plea” dated 20 October 2022. This is an agreed document. It reflects your acceptance of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which you fall to be sentenced. I have had regard to the entire document.
7
In short compass at 5:30 am on 15 August 2020, members of the
Victorian Police Special Operations Group entered an apartment located at
901/85 Market Street, South Melbourneby force and pursuant to a warrant shouting 'Police, don't move' and 'Police, get on the ground'.
8You were present together with Michael Ray and Tegan Jones who lived at the address.
9Police observed you and Mr Ray standing still at the end of a kitchen bench. On the bench in front of you were two bags later determined to be methylamphetamine weighing a total of some 569.8 grams. On the floor near Mr Ray and your feet was a small cup of crystal substance with its contents spilled onto the floor, referred to as 'the spilled quantity', together with a small scoop. This was also later analysed and found to be methylamphetamine weighing 54.9 grams.
10
The basis of Charge 1, trafficking in a drug of dependence is that you and Mr Ray were jointly exercising control over the 54.9 grams of methamphetamine at the moment of police entry, that being the amount that spilled onto the floor. It is accepted that you and Mr Ray were in the process of measuring a quantity of methylamphetamine from Mr Ray's stock, which you intended to acquire from
Mr Ray for purposes which included resale.
11You will be punished for these facts only.
12You were searched by a police operative and a small satchel or purse was discovered along with a phone and cigarette lighter.
13The apartment was also searched and a large quantity of drugs, money, phones, weapons and other items were located by police. They are not relevant to your plea and this information is provided by way of context only. Mr Ray and Ms Jones each have potential trials pending.
14You were arrested and taken to the Melbourne West Police Station.
15Your address was also searched by police and no items of value were found.
16You were remanded into custody but released onto bail on 18 September 2020 on your own undertaking with conditions attached. Those conditions included that you were only permitted to use one mobile phone and that you were to provide that phone's number to the Informant.
17On 25 October 2020 you called the Caulfield Police Station to report on bail using a different mobile phone number than the one that you had provided to the informant. This forms the basis for Summary Charge 20, breach conduct condition of bail.
18On 4 November 2020 police attended upon you at the Malvern Private Hospital where you were undergoing rehabilitative programs to conduct a bail compliance check. It was discovered that you possessed two mobile phones on that date forming the basis for the uplifted Summary Charge 21, breach conduct condition of bail.
Offence gravity
19I turn now to offence gravity. In terms of the bail offences they are each in breach of a court order. Your actions show disrespect for that court order. The first summary charge on the available evidence represents you being in possession of a second phone for one phone call and is clearly at the lower end. The circumstances of the second summary charge are more serious. You clearly had two mobile phones in your possession in breach of your bail order and it was, as is apparent, for a second occasion.
20In terms of the charge of trafficking in a drug of dependence this is serious offending for which it would appear you were literally caught red-handed.
21In the circumstances of your case, and under a quantity-based sentencing regime, the quantity of drugs is a significant indicator of the seriousness of a drug offence.
22The factual basis outlined is that the quantity which is said to be in your possession is the joint possession of 54.9 grams of methylamphetamine with Mr Ray at the moment of police entry to the Market Street premises. You had an admitted intention to use the drugs you intended to purchase and also to on-sell.
23You are charged with a single date but you are effectively charged with that moment in time.
24It would appear from the circumstances that you were able to readily access a not insignificant amount of methylamphetamine, given you are said to be in joint possession of what is close to 2 ounces. I am told that the purity of the substance found was at 81 per cent methylamphetamine. However the facts themselves and the agreed position of 'joint possession' with Mr Ray make it impossible to determine what amount was intended to be yours had police not made their entry. In those circumstances, I could not assess your intention to traffick drugs at a level other than what has been described, and is accepted by both parties, as 'street level.' I note nothing of value to the prosecution case was located on your person or at your premises, supporting the somewhat unique factual basis on which you do fall to be sentenced.
25Mr Cutajar, you know at first hand the havoc ravaged on the life of a drug user in the almost inevitable inability to maintain meaningful relationships, the lies that have to be told, the impact on employment and accommodation, and the impact drug use also has on mental health and a resort to criminal behaviour. For you personally, you have been remanded twice and after today, would have been sentenced to imprisonment twice as a direct consequence of your drug use.
26In addition and axiomatically, methylamphetamine and its sale has enormous negative ramifications for the community for the same reasons as it has had for you.
27For your own needs, you were prepared to be involved in the pernicious trade of drug trafficking. It is obviously a lucrative business with enormous impact and devastating impact on the community through the offending that does result from drug addiction, the physical and mental health effects and the behaviours drugs then produce. As I have said, you would have been aware of this from your own experience as a user and for an extensive period of time.
28In terms of trafficking in drugs, general deterrence, denunciation and community protection are important parts of the sentencing mix and the message needs to be clear to those who may be tempted to engage in such activities that stern punishment will result.
Plea of guilty
29The Sentencing Act obliges me to take into account the stage at which you entered your pleas of guilty. In late September 2022 the court was advised that the charges against you had been resolved.
30There is some explanation for the delay in parties taking time to achieve resolution and I am satisfied that this was something that was agitated on your behalf for an extensive period of time.
31Whilst it appears at first instance not to be a plea at the earliest opportunity, you were committed to this court on far more serious charges. Your plea, in reality, does reflect the earliest opportunity for you to plead guilty in terms of the facts and the charges which are now before the court.
32There also remains clear value in saving witnesses of the need to give evidence and utilitarian value in saving the community the expense of contested proceedings.
33Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted.
34
In the recent decision of Worboyes v The Queen [2021] VSCA 169 at
paragraph 39 the Court of Appeal said that, and I quote,
“ A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.”
35Whilst remorse is harder to discern I accept you are taking responsibility for your offending.
36These factors will be taken into account in your favour.
Personal circumstances
37I turn now to your personal circumstances.
38You were 27 years of age at the time of the offending and are now aged 30 years.
39You are the eldest of two boys born of your parents Mary and Robert Cutajar. You enjoy a close relationship with your younger brother, Nathan.
40By all reports you had a good childhood. It was described to me as unremarkable, but it seems to me to have been a good one and a supportive one.
41You completed your VCE in 2010 and gained entry into a Bachelor of Commerce at Deakin University. At that point you were on the cusp of the rest of your life.
42However by that time, aged 18 years, you had all ready commenced a dependent relationship with illicit drugs which has largely continued for the last decade. You had become dependent on methylamphetamine by 23 years of age. Your early drug use affected your studies and you were unable to complete your degree.
43On leaving university, you did commence paid employment.
44This is in a somewhat protected context. You have worked in the field of civil construction and elevator maintenance for KONE under the guidance and encouragement of your father who worked in the same industry for many years. Today I was told of two injuries you sustained in 2019. One was to your elbow in August of that year when you fell from scaffolding at work and your elbow fell onto a piece of steel. The other was an injury to your leg in undefined circumstances where you were stabbed and also apparently suffered significant injury. Your father has indicated in his evidence that he would describe your overall view of 2019 as one in which you were in a ‘dark place’.
45In early 2020, both you and your father were made redundant in the circumstances of the COVID-19 pandemic. You were fortunate to have received a healthy redundancy package of some $50,000 which you squandered through drug use and emerging gambling issues.
Prospects for rehabilitation
46A recent chronology of your life would indicate that your prospects for rehabilitation may have their limits.
47I will deal first with your prior criminal history.
48Your prior criminal history commences and concludes on 13 May 2015 at the Werribee Magistrates' Court when you were dealt with for charges of traffick cannabis, possess and use methylamphetamine, possess MDMA, and two charges of deal with property suspected to be the proceeds of crime. You were convicted and placed on a community corrections order for a period of 24 months with treatment conditions and 450 hours of community work.
49You successfully appealed this decision to the County Court on 3 September 2015. The County Court again placed you on a community corrections order for a period of two years with treatment conditions but reduced the community work component to 300 hours. It would appear that you successfully completed the Corrections Order but may not have learnt all that you could from that experience and the treatment that should have been part of that order .
50You are not to be punished a second time for this previous court appearance but it is relevant to the assessment that needs to be undertaken by me as to the weight to attach in the sentencing exercise to the principles of specific deterrence, that is putting you off further offending, denunciation and, of course, protection of the community. Given the relevance of your prior matter it is a means also to assess your moral culpability for the offending before me which I assess as being high. Your prior matter is also a mechanism to assess your future prospects. It provides foundation for your acknowledged long-standing addiction for drugs. I note there are five years between those matters and the matters now before me actually occurring.
51It is the events post arrest on 15 August 2020 which also have relevance to the assessment of your prospects for rehabilitation in the way which I have described.
52
On 18 September 2020 you were granted bail on the basis of an admission to the
Malvern Private Hospital for drug treatment. You were admitted to the
Malvern Private Hospital on 2 November 2020 for what was intended to be a
28 day stay. No material has been tendered in relation to this period of treatment. It was during this time that summary Charge 21 arose.
53Post discharge from the Malvern Private Hospital you were being treated by Amanda Brown, Drug Clinician. No material has been tendered in relation to this period of treatment. Ms Brown terminated your treatment on 25 February 2021, I am told in circumstances where there were abnormal results from supervised urine screen samples.
54On 7 April 2021, an application to revoke your bail by the Crown was unsuccessful.
55However, on 26 January 2022 you were remanded into custody as a result of further drug-related offending. An application to revoke your bail on the matters before me was granted by the County Court on 10 February 2022.
56On 23 June 2022, you were sentenced by the Magistrates' Court for two charges of trafficking in a drug of dependence, five charges of possessing a drug of dependence, one charge of possess property suspected to be the proceeds of crime, three bail related offences and one charge of fail to provide access to data. This offending was committed by you I am told, on or about 26 January 2022. A magistrate convicted and sentenced you to four months imprisonment which was reckoned as having all ready been served.
57Having completed that sentence, an application was then made on your behalf to the County Court on 12 August 2022 for bail. That application was refused.
58This chronology reflects your ongoing battle with drug use and a preparedness to resort to criminal behaviour to fund that use. It also elevates the need to consider protection of the community in the sentencing exercise.
59You spent 35 days in custody for your first period on remand in relation to these matters and have again been on remand for a further 153 days.
60Each of your periods of remand and your intervening sentence have been during the Corrections response to the COVID-19 pandemic where I accept, in general terms, that there has been less access to freedom of movement within the prison system, less access to educational and rehabilitative programs and less access to contact visits from friends and family. You have only physically seen your parents once whilst you have been in custody. New inmates were required to quarantine for 14 days on each occasion of a prisoner movement. This overall, does make any remanded or sentenced prisoner experience more burdensome than it would otherwise be and I take this into account in a general sense.
61However it would also appear that any lessons learnt by you from these experiences are being learnt slowly indeed.
62This is reinforced by the psychological assessment of you dated 21 June 2022 authored by Mr Patrick Newton, Clinical and Forensic Psychologist.
63
Mr Newton reports that after exiting your treatment with Ms Amanda Brown you attended more than 25 consultations between March 2021 and January 2022 with
Mr Peter Hanley, a Psychologist who works with Mr Newton. These consultations had their focus on addressing issues related to your drug use and gambling. You apparently made poor progress with treatment as you experienced periodic relapses and found it difficult to engage consistently. This treatment period saw its finalisation in your arrest for the matters recently dealt with in the
Magistrates' Court.
64Mr Newton notes your lengthy history of problematic gambling behaviour which coincided with your drug use, that also disinhibited you and led you towards more profligate wagers. You are yet to really tackle this issue.
65In Mr Newton's opinion you have some anxiety which causes you a relatively mild level of distress. He notes the danger to you in your reported history of drug induced paranoid ideation during periods of acute intoxication with methamphetamine. This experience is something for which you should show extreme caution into the future and any decision to return to drug use.
66Despite your participation in several bouts of drug-related treatment Mr Newton is of the opinion that you only have a preliminary understanding of the issues that you need to tackle in terms of relapse prevention and harm minimisation. He does present you with an elevated risk of relapse to drug use upon your release from custody.
67Your counsel does not call into your aid the principles of R v Verdins & Ors (2007)
16 VR 269.
68I accept that you have the continued support of your parents. That chronology in itself would indicate that you are lucky to do so. I have got no doubt that you have been a considerable source of emotional stress and indeed financial stress for each of your parents who are both hard working. Your parents have attended your plea hearing. Your father has recently been diagnosed with Parkinson's disease and you instruct that this diagnosis has given you a stronger desire to abstain from drugs in order to provide support to your parents emotionally and physically, rather than the other way around. You intend to return to the family home upon your release.
69You also hope to return to paid employment upon your release from custody.
Totality
70The chronology as outlined also has relevance to the sentencing exercise in terms of what is called the principle of totality. The totality principle requires, where an offender is being sentenced to multiple terms or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is just and appropriate for the whole of the offending. This principle is relevant to the time you have spent in custody to date directly referable to the offending before me and the sentence that has been imposed upon you during that period in the missed opportunity to have all matters dealt with at the same time.
Delay
71The chronology overall also has relevance to delay. You were charged on
15 August 2020.72The ongoing progress and listing of your matters has been marred at various stages by the COVID-19 pandemic and the need to conclude proceedings which also involved the other occupants of the Market Street address on 15 August 2020, that being Mr Ray and Ms Jones.
73These delays are not of your making but have extenuated the stress upon you of ongoing criminal proceedings until such time that they could be finalised some
two years and two months later.74It is also a factor I take into account marginally and in a general sense.
Sentencing submissions
75In terms of sentencing submission, your counsel submits that all relevant sentencing considerations can be reflected in the imposition of a combination sentence, that is a term of imprisonment in combination with a community corrections order.
76Section 44 of the Sentencing Act 1991 states that when sentencing an offender in respect of one, or more than one, offence , a court may make a community corrections order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served
(after deduction of any period of custody that under s18 is reckoned to be a period of imprisonment or detention already served) is one year or less. You have
189 days which are capable of deduction.77The prosecution yesterday submitted that a head sentence with a non-parole period is the only way to reflect the purposes for sentencing contained in the Sentencing Act 1991. There has been some clarification of their position today. Today it is not sought that a non-parole period be imposed, but a gaol sentence is still sought. It is submitted to me that a Corrections Order serves no purpose as it is not able to protect the community from you, given the chronology of events.
78In order to be better informed, I did have you assessed as to your suitability for a community corrections order.
79An assessment outcome report advises that you are suitable for a
community corrections order.80I find some comfort from the fact that you have previously complied with a lengthy
Corrections Order and that despite the apparent barriers to your rehabilitation given your lack of insight into your addiction, you find some motivation in being a better support to your parents in their time of need. I do see some merit in an extensive period of supported rehabilitation. In my view it is a means to protect the community in your rehabilitation. It is a means to support that rehabilitation, but it is capable of responding quickly should you be non-compliant. That in itself, also offers the community protection.Sentencing
81I turn now to sentencing.
82I firstly make the ancillary orders as sought for disposal and forfeiture of scheduled items.
83The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
84I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated, and are safely returned to the community.
85I have taken into account the sentencing guidelines referred to in s5 of the
Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality.86For Summary Charge 20, you are convicted and fined the amount of $750.
87For Summary Charge 21, the second in time and in more serious circumstances, you are convicted and sentenced to 14 days' imprisonment.
88I do plan to accede in part to the submissions made on your behalf as to the way a sentence should be constructed. I am not satisfied however in the overall circumstances that time served is sufficient. For Charge 1 on the indictment, you are convicted and sentenced to eight months' imprisonment of which I reckon
189 days as having already being served. This is in combination with a community corrections order of two year's duration during which you are to:(a) perform 200 hours of community work;
(b) to be supervised by the Office of Corrections;
(c) to submit for drug testing and treatment;
(d) to submit for offence specific programs as assessed, including for your gambling issues;
(e) One hundred hours of community work will be offset by treatment. So more treatment, less community work.
I have contemplated whether or not I should judicially monitor you and on balance I am minded to do so. This will require you to come back before me at regular intervals so I can check on your progress and also in effect make sure that Corrections are implementing the treatment plans I intend. And I will look to a date in February or March of next year. I will come back to you with that in a moment.
89In addition to the conditions that I have imposed and they should be somewhat familiar to you, there are standard conditions. The first and foremost of those is you must not commit any other offences punishable by imprisonment during the
24 month period for which the order exists. You must also report within two working days of your release to the nearest Community Corrections Office. You are required to advise your supervising Corrections Office of any change of address of where you are living or working and you must do so within two clear working days. It is a term of all community corrections orders that you must submit for visits as directed and you must obey all of the instructions and directions of a
Corrections Officer. You cannot leave the State of Victoria without their prior permission.90In my view, Mr Cutajar, this order presents you with a chance to change your life in a positive fashion, should you choose to take up that opportunity and the supports that I intend be made available. As I have said the order can be breached, if you do not comply with it in terms of the conditions or if you reoffend with an offence punishable by imprisonment whilst it is in place. If you do, you will have to appear back before me for contravening the order and I may have to resentence you on the original charge as well as sentence you for breaking the order. Now I can only place you on that order if you agree to be placed on that order. And in a moment I will stand down temporarily and you can speak to
Ms O'Brien privately about that.91Before I do so, s6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. If not for your plea of guilty you would have been sentenced to 20 months with a two year community corrections order.
92Before I disappear momentarily Mr Cookson I will just check if there is anything I have missed from your end?
93MR COOKSON: The only thing that cause any thoughts to come across my mind, Your Honour's sentence on Charge 21 was 14 days' imprisonment, because that is a breach of the Bail Act, I think there's a presumption of cumulation of s16 that might apply. Was it Your Honour's intention to be concurrent or cumulative?
94HER HONOUR: I note the provisions of s16, and I am going to say (3C) but I might wrong, it might be, that require cumulation for a bail offence, but mindful of the principle of totality it is my intention to be concurrent hence no announcement was made, but I should have addressed that provision, so I thank you for bringing that to my attention.
95MR COOKSON: That is all Your Honour.
96HER HONOUR: Thank you. Anything from your end Ms O'Brien?
97MS O'BRIEN: No, Your Honour. I was just going to ask about the 21.
98HER HONOUR: All right. So Mr Cutajar I'm going to stand down temporarily which is code for me disappearing for a moment. You'll have the opportunity to speak with Ms O'Brien privately, just in terms of your willingness to accede to the
corrections order, she can explain that to you. When she lets my staff know they are ready for me to come back, I'll come back. That'll complete the sentencing process hopefully, and then you can speak with Ms O'Brien privately about any other matters that you might wish to discuss? All right?99OFFENDER: (Inaudible response.)
100HER HONOUR: All right, I'll stand down temporarily thank you.
(Short adjournment.)
101MS O'BRIEN: Thank you, Your Honour I have taken instructions in relation to the proposed community corrections order and Mr Cutajar agrees to consent to that order being made and certainly agrees to comply with the order.
102HER HONOUR: All right, Mr Cutajar I'll see you at 10 o'clock on 15 February 2023. You will be able to appear remotely from your Corrections Office. Alternatively, you are very welcome to come in. I will get an update on your progress on the community corrections order and let me assure you, I only want to read very good things.
103OFFENDER: Oh yeah, I understand thank you, Your Honour.
104HER HONOUR: I'm pretty sure your parents want me to read only good things too. All right thank you Mr Cookson and Ms O'Brien for your assistance in this matter and putting up with my general grumpiness. I'll stand down now until - - -
105MS O'BRIEN: Thank you Your Honour for accommodating the matter.
106HER HONOUR: Yes.
107MR COOKSON: And my sentiments Your Honour.
108HER HONOUR: I'm standing down until 2.15 I believe.
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