Director of Public Prosecutions v Dalton; Director of Public Prosecutions v Howarth: Director of Public Prosecutions v Montgomery; Director of Public Prosecutions v Verry
[2014] VCC 1048
•18 June 2014
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR -14-00172
CR -14-00179
CR -14-00180
CR -14-00167
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CR -14-00171
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON DALTON JOSHUA DALTON REBECCA HOWARTH JAI MONTGOMERY JUSTIN VERRY |
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| JUDGE: | HIS HONOUR JUDGE M P BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | … |
| DATE OF SENTENCE: | 18 June 2014 |
| CASE MAY BE CITED AS: | DPP v Dalton; DPP v Howarth: DPP v Montgomery; DPP v Verry |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1048 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Perry | Solicitor for Office of Public Prosecutions |
| For Offender A Dalton | Mr L Hartnett | |
| For Offender J Dalton | Ms Z Garde-Wilson | |
| For Offender Howarth | Mr A Purcell | |
| For Offender Montgomery | Mr R Stokes-Hoare | |
| For Offender Verry | Ms Z Garde-Wilson |
HIS HONOUR:
1I will not ask you to stand, any or each of you, until I come to formally sentence each and I will do that not right at the end but as to each of you individually in the order in which your plea hearings ran.
2Rebecca Howarth, you are to be sentenced for two charges of trafficking in a drug of dependence in a commercial quantity. Those drugs are respectively methylamphetamine and ecstasy.
3Jai Trevor Montgomery, you are to be sentenced for two charges of trafficking a drug of dependence in a commercial quantity, the drugs are again methylamphetamine and ecstasy, for three charges of possession of a drug of dependence and one charge of arson.
4Justin Huck Verry, you are to be sentenced for one charge of trafficking in a drug of dependence, methylamphetamine, in a commercial quantity and one charge of trafficking in a drug of dependence, ecstasy.
5Joshua Dalton you are to be sentenced for one charge of trafficking in a drug of dependence, methylamphetamine, in a commercial quantity. Joshua Dalton, you are also to be sentenced for the summary offences of using a drug of dependence and dealing with proceeds of crime.
6Aaron Dalton, you are to be sentenced for two charges of trafficking in a drug of dependence in a commercial quantity, the drugs are also methylamphetamine and ecstasy, for one charge of recklessly causing serious injury, one charge of false imprisonment, one charge of reckless conduct endangering a serious injury, one charge of affray and one charge of arson.
7The relevant maximum sentences are as follows. Trafficking in a commercial quantity carries a maximum sentence of 25 years' imprisonment. Trafficking simpliciter, 15 years' imprisonment. Possession of a drug of dependence, five years' imprisonment. Arson, ten years' imprisonment. Recklessly causing serious injury, 15 years' imprisonment. False imprisonment, ten years' imprisonment. Reckless conduct endangering serious injury, five years' imprisonment and affray, five years' imprisonment.
8Each of you pleaded guilty to separate indictments before me on 27 May 2014.
9You were arrested and interviewed by police in the period September to December 2012. You, Montgomery, Verry and Aaron Dalton, exercised your right to silence. You, Howarth, made denials. Joshua Dalton, you were interviewed twice in late 2012. On 18 September you made admissions and made a statement assisting the police. All committals ultimately went by hand-up brief after which you entered pleas of guilty; but for you, Montgomery. However, it is conceded that you entered a formal plea of not guilty and your matter was also resolved soon after.
10You each receive the benefit of your pleas of guilty and the level of cooperation reflected respectively in that history of proceedings. Your pleas of guilty have facilitated the interests of justice. A trial of all five would have been one of considerable cost and length.
11Your plea hearings ran on 27 and 28 May. At each, Mr Perry for the Crown tendered a relevant written Crown openings, transcript of plea hearings and reasons for sentence of co-offenders previously dealt with by me.
12Mr Purcell for you, Howarth, tendered the psychological report of Ian Mackinnon dated 22 March 2014.
13Mr Cantor for you, Mr Montgomery, tendered the psychological report of Pamela Matthews dated 25 May 2014 and the medical report of paediatrician Mr Terry Stubberfield dated 21 May 2014. He also called your mother, Leonie Montgomery, to give evidence on your behalf.
14Ms Garde-Wilson for you, Verry, tendered the psychological report of Jeffrey Cummins dated 21 March 2014 and several reports by practitioners at Birribi Drug and Alcohol Rehabilitation Program run by the Youth Support and Advocacy Service (YSAS). Attached were drug urine screening results. She also tendered a number of letters of work and character reference and a short letter by Dr Ahmed El Haddari certifying that you have suffered and taken medication for epilepsy since 2010.
15Mr Tyrrell for you, Joshua Dalton, tendered the psychological report of Jeffrey Cummins dated 20 February 2014 and letters of work and character reference.
16Mr Hartnett for you, Aaron Dalton, tendered the psychological report of Warren Simmons dated 21 May 2014, the letter dated 25 February 2014 of Andrea Azevedo, senior psychologist at Port Phillip Prison, urine screen results from Port Phillip Prison, certificates related to educational and rehabilitation programs in remand custody, a discharge summary dated 29 November 2012 from Thomas Embling Hospital, assignments and/or essays completed by you in a Bachelor of Behavioural Studies course undertaken in remand, a folder of photographs and other documents related to your career as a cyclist and your own letter to the court dated 23 May 2014. He also called your father, Shane Dalton, to give evidence on your behalf.
17All counsel provided to me written submissions on plea with associated documents.
18The tendered Crown summaries comprehensively describe the circumstance of your involvement in these offences. My own summary may therefore be shorter. In the second half of 2012 a police operation named "Entangle" investigated a large drug syndicate operating in the north-east of Victoria. The syndicate which was managed and closely controlled by you, Aaron Dalton, supplied drugs including ice, amphetamine and ecstasy to such towns and areas surrounding as Wangaratta, Wodonga, Yarrawonga, Myrtleford and Shepparton. It also operated in New South Wales.
19It appears that the drugs were supplied to Aaron Dalton mainly from Sydney. Under Dalton were usually younger males and females, some for reasons of the syndicate security, without prior criminal history. You, Howarth and Verry are examples of this. The operation was pervasive and sophisticated. Features included the following.
20There was close control by Aaron Dalton, effected by strict rules, threat and violence with the group, upon those outside and on the periphery. Firearms were used. There was regular movement using short term accommodation in hotels, resorts and the like, arranged by members of the syndicate without criminal history. Upon receipt of large amounts of drugs there was weighing, cryovacing, packaging using electrical tape and secreting of the packages, often by burying near such accommodation. Aaron Dalton stayed distant from the drugs. Drugs were supplied to dealers who were subject to detailed instructions and protocols in respect of contact and communication with the syndicate and their purchasers. The protection of Aaron Dalton in the syndicate seemed paramount. Computer generated documents were used. There were protocols for destruction of written materials.
21As stated, the enterprise was sophisticated and featured strict control and management by violent and quite brutal methods.
22The Drugs, Poisons and Controlled Substances Act states the commercial quantity thresholds to be as follows; for both methylamphetamine and ecstasy MDMA, in pure form, 100 grams and, in mixed form, a total mixture of 500 grams. A large commercial quantity for which you are not to be sentenced is 750 grams or one kilogram. No specific total quantities were put to me on the plea, which is understandable in such a case as this. The Crown summary refers to depositional material alleging very large amounts indeed. However, I bear in mind the charges and quantities to which you have pleaded. The quantities trafficked in the enterprise must be seen as laying over (on my analysis at least very comfortably beyond) the commercial quantity threshold; but short of large commercial quantity. As stated, over the period large amounts were trafficked.
23Aaron Dalton, as stated, you ran the business. You seem to have done so in an absolute and autocratic way. Others of you had different roles within the enterprise. As to some, there are particular offences charged and on which you are to be sentenced arising out of your involvement and role within it. Mr Perry, in his submissions, stated the Crown position on a hierarchy of role or involvement. As I understood it, Mr Perry's hierarchy was not seriously challenged.
24Rebecca Howarth, your main roles together with a co-offender named Sarah Blackman, whom I have already sentenced, were those of sourcing and arranging accommodation, vehicle hire and making payments for these with funds supplied by Aaron Dalton. It is clear that you also assisted in weighing and packaging drugs on at least one occasion. The period of your involvement was between early June and mid-September 2012, about three and a half months. The context for that involvement was that you were in a relationship with Aaron Dalton. That is now over.
25You are now aged 24 and you were 22 years of age at the time of offending. You have no prior convictions. You have suffered a dysfunctional and damaging upbringing. Both of your parents were drug users. They separated when you were nine. At a time after that, you discovered your mother dead in your home. Living with your father and then unsuccessfully in foster care, you attended seven primary schools. Ultimately you finished Year 10 at secondary school and later qualified in aged care. You worked for some time in that. You have two younger sisters and two half-sisters. At the time you met Aaron Dalton you were recovering from an abusive relationship which ran for about 12 months. You had left that man and lived in the Central Coast area of New South Wales for a time. You returned or moved to the Albury area and met Dalton.
26The tendered psychological report of Ian Mackinnon states episodes of self-harming and suicide ideation over your life. Presently you suffer no significant psychological conditions; however Mr Mackinnon states as follows.
"In my opinion, as a consequence of the serious abuse and trauma Ms Howarth had suffered in her relationship with her first partner, at the time of the 2012 offences she was suffering from a moderate adjustment disorder with associated mixed anxiety and depressive features and associated substance abuse; that is, habitual cannabis and alcohol abuse".
27You presently live in New South Wales with a foster brother. The Crown places your role within the offending as similar to that of Sarah Blackman, at the low end of involvement. That is consistent with the relevant evidence before me. On 17 October 2013, I sentenced Blackman on the same charge to a two year community corrections order with 400 hours of unpaid community work. There were other conditions related to assistance to her rehabilitation.
28Precise application of the principle of parity, as is often the case, is not appropriate. For example, Blackman pleaded guilty at an earlier time and more significantly, undertook to assist the prosecution against others including you. I see that undertaking by her and other co-offenders I have sentenced to be important and likely to have played a role in your and others’ decision to plead guilty. However, I have decided that bearing in mind what I see to be the relevant sentencing factors, a just sentence of you requires a similar, non-custodial sentence. I have decided so, still taking into account such sentencing considerations as deterrence, denunciation, moral culpability and proportionality which apply to offending such as yours. I refer to my general descriptions of the offending in other parts of this sentence.
29I take the view that the relevant sentencing purposes can be met by a sentence of community corrections order with appropriate conditions. I have received a community corrections assessment report indicating that you are suitable for such an order. Stand up please, Ms Howarth.
30Rebecca Howarth, on two charges of trafficking a drug of dependence in a commercial quantity, I impose a community corrections order of three years' duration.
31The usual terms apply. There are the following additional conditions.
32That you perform 500 hours of unpaid community work over the period of three years;
33That there be assessment and treatment for drug dependence;
34That there be assessment and treatment for alcohol use;
35That there be supervision and;
36That there be mental health assessment and treatment.
37Had you not pleaded guilty, I would have imposed a sentence of imprisonment of 18 months with a minimum term of six months.
38There are other orders that you have foreshadowed earlier, I will deal with those at the end of all of my sentences, if I might. Now that document needs to be prepared and you need to enter into it and I will do that after I have sentenced the others. You may now come out of the dock and sit in the body of the court near your barrister.
39Perhaps just stand there for the moment, I needed to add this. Just stand up, please. Given your present address in New South Wales, such an order (the community corrections order) will require transfer to Gosford in that state. The suitability assessment report of Richard Temple-Camp refers to this and seems to establish the necessary steps for it. Take a seat there, please.
40Jai Montgomery, you are also to be sentenced for trafficking in a commercial quantity of both methylamphetamine and ecstasy, charges 1 and 2 on your indictment. You were involved in the syndicate's offending for the period of 12 months between September 2011 and September 2012 when arrested. You were a close associate of Aaron Dalton, whom you have known since your age of 18. You were 24 at the time of offending. You were involved in the obtaining, preparation, sale and distribution of the drugs. As stated, this continued over the prolonged period of 12 months.
41Charges 3, 4 and 5 on your indictment relate to possession of drugs of dependence, two tablets of Valium on 27 July 2012 and then methylamphetamine and ecstasy on 29 August 2012. I see it as likely that these possessions were largely related to the trafficking charges, particularly Charges 4 and 5, both drugs being the same as in Charges 1 and 2. You will be sentenced accordingly.
42Charge 6 is a charge of arson. You were involved in the throwing of a Molotov cocktail against the front door of the home of Donna Day in Yarrawonga. She had been warning people about Aaron Dalton's drug activity and had been threatened for that. Persons including young children were present in the home. $380 damage was caused.
43You are now a 26 year old man, presently held in remand custody. You have been so for a period of about 21 months. The criminal history report which has been filed with your indictment states four court appearances for criminal offending between 2006 and 2010. There are no drug offences and no convictions. You received a community based order without conviction in July 2009 for affray and recklessly causing injury. There are driving offences in 2005.
44You were raised in the Wangaratta area and have a half-brother aged 28. You were born with a congenital condition, being, as your mother stated, without a fibula, ankle and foot. You wore your first prosthetic at 13 months. This disability and other problems including diagnoses of ADHD, depression and impaired intellectual function affected your schooling. As a child, you were tested at 78 IQ, within the so called borderline category. More recent testing places you in the low-average range. You left school at Year 9. There was some seasonal rural work; however you have been unemployed for over three years. You began using cannabis at 13 and progressed to harder drugs and then methylamphetamine in your early 20s.
45It seems apparent that your involvement in this offending was born of your relationship with Aaron Dalton, drug use over time, desire for some financial independence and that continued lifestyle. There is no evidence of actual financial benefit.
46I accept your mother's description of you at the time of offending as being consistent with damaging drug use. Psychologist Pamela Matthews states the following.
"In the writer's view, Mr Montgomery's developmental conditions have a direct link to his illicit drug use in that his drug use from his mid-teens has; (a) provided him with a social entrée and social acceptance and (b) provided a self-medicating function for both symptoms of ADHD and his mood disorder. He found friendship through drugs with Mr Dalton and his engagement in the drug distribution network as a friend of Mr Dalton; made him feel, 'Good, happy, good energy, not angry, calm, I felt like I belonged, I felt good about myself because I belonged'.
In the writer's view, there is a direct nexus between Mr Montgomery's developmental conditions; (a) his physical disability and associated social isolation, (b) residual symptoms of ADHD and (c) persistent untreated mood disorder and Mr Montgomery's offence behaviour".
47Despite this, I see little very significant application of the principles stated in R v Verdins and like cases. I do accept that your life's difficulties are part of the personal context for sentence of you, including that you were likely more vulnerable to the choice of taking part in this offending. Your imprisonment has been and will continue to be more difficult. I do not see moral culpability as an appreciably lesser sentencing consideration.
48Upon release from prison you plan to live with an aunt in Tarneit near Werribee, to continue training and work in welding. You have used remand custody to make efforts at such rehabilitation. You are supported by your family and particularly your mother.
49Such drug trafficking as this and your involvement, which whilst not as a leading player was important, is very serious offending. Sentencing considerations such as deterrence, your moral culpability, denunciation and the need for punishment proportionate are important. The offence of arson is a significant example of that offence, bearing in mind its motivation and the risk and no doubt fear it posed to innocent persons. A sentence of imprisonment and a period beyond what you have already served is necessary. Factors which should moderate that sentence include the following.
(i)Your plea of guilty and cooperation. I accept Mr Cantor’s statement that you indicated a willingness to plead guilty to the major offences of trafficking several months prior to your committal;
(ii)The, to an extent, mitigating circumstances of your involvement in the offending;
(iii)Your personal history and circumstances. That includes your physical and psychological health problems;
(iv)I see you as having some prospects for rehabilitation given, for example, your age and family support.
50Again, precise parity with others I have sentenced, for example, co-offenders Krucham Chandler, Bradley Whinray and Dean Griggs, is not applicable. Chandler and Griggs had the benefit of earlier pleas and undertakings to assist prosecution. Chandler left the enterprise months prior to arrest. However, I have attempted to have some just reference to the sentences of others. Stand up, please, Jai Montgomery.
51I sentence you as follows. On Charges 1 and 2, trafficking in a commercial quantity, you are sentenced to four years' imprisonment on each.
52On Charge 3, possess a drug of dependence, diazepam, sentenced to one month's imprisonment.
53On Charges 4 and 5, possession of drug of dependence, four months on each.
54 On Charge 6, arson, to 12 months' imprisonment.
55 I direct that six months of the sentence for Charge 6 be served cumulatively on the sentence for Charge 1.
56 That is a total effective sentence of four and a half years.
57 I set a minimum term of two years and nine months before eligibility for parole.
58 What is the s.18 period that I must declare?
59 MR PERRY: 640 days inclusive of today, Your Honour.
60 HIS HONOUR: I declare 640 days of presentence detention.
61 Had you not pleaded guilty, I would have sentenced you to a head sentence of six and a half years with a minimum term of four and a half years.
62 Now I had proposed that Mr Montgomery be taken into custody now but I must at least advise him of the forfeiture orders. Those are forfeiture orders in relation to what, drugs and other items, are they?
63 MR PERRY: Yes, Your Honour. Any of the drugs found and then a sum of $450 in cash found on him.
64 HIS HONOUR: All right. This is not opposed as I recollect. I am going to make those forfeiture orders and I'm also going to direct that you supply a sample of your saliva. The reasons why I do that are the seriousness of this offending and your prior convictions. It is emphatically in the public interest that I make this order.
65 MR PERRY: We in fact mean it to be a retention order, Your Honour.
66 HIS HONOUR: It is a retention order, is it? Are we sure about that or not?
67 MR PERRY: I believe so.
68 HIS HONOUR: It is a retention order. I do not need to say anything else to him. Might Mr Montgomery be taken to custody now or are there any other things that need to be done.
69 MR PERRY: Nothing else from the prosecution end, Your Honour.
70 HIS HONOUR: Mr Montgomery can be taken to custody then.
71 640 days is about 21 or 22 months, am I right about that?
72 MR PERRY: I believe so, Your Honour.
73 HIS HONOUR: Yes, thank you.
74 Justin Verry, as I have earlier stated, you are to be sentenced for one charge of trafficking methylamphetamine in a commercial quantity and one charge of trafficking ecstasy; however, in less than that quantity. They are respectively Charges 1 and 2. There are no other associated offences. It was put by Ms Garde-Wilson for you that it is conceded that in your case the quantity trafficked in Charge 1 was at the lower end of commercial quantity. This was not challenged.
You are a 20 year old man without prior convictions. There is so subsequent offending. You were aged 18, almost 19, at the time of offending. You have served, I have noted, 77 days.
75 MR PERRY: Yes, Your Honour.
76 HIS HONOUR: You have served 77 days in adult remand custody before being released on bail. I shall return to this. The period of your involvement in the syndicate was, similarly to Rebecca Howarth and another co-offender earlier sentenced, Sarah Blackman, about three and a half months. As to your role the tendered Crown summary states as follows at Paragraph 16.
"The evidence in this case primarily places Verry as a driver for the syndicate as indicated by Dalton to Griggs. Although there is also evidence from Whinray that Verry was engaged in selling, the prosecution case would place him below Chandler and Montgomery in terms of the level of his offending".
77 At Paragraph 14 there is co-offender Winrey's assertion (not, without concession, relevant to your case, that you also sold drugs and more than he did. Mr Perry for the Crown put before me that you sold some drugs; but did not challenge that such selling was limited to the purpose of supporting your own drug habit. He stated that, given your value as a driver, you should be placed slightly higher than Howarth and Blackman in the hierarchy of things. You were given your role as driver because of your youth and that you had no prior convictions; you would be unlikely to attract attention. It is also stated that you introduced co-offender Griggs to Aaron Dalton and the syndicate. Submissions tendered on your behalf state that at times you assisted in the packaging of drugs.
78 You were raised in the Central Coast area of New South Wales and then in the north eastern area of Victoria. Your parents separated when you were aged about 12. Your father now lives in Queensland and your mother who has recently remarried lives in Wangaratta. You have an older brother. None of your family has been in trouble with the law. They are supportive of you. You left school in Yarrawonga after passing Year 10. After that you worked in abattoirs in Cobram, for the same company in Townsville, Queensland and then again in Cobram. You were living in Yarrawonga.
79 It was after your return to Victoria that you began abusing drugs, particularly methylamphetamine. You left work and were unemployed until your arrest for this in September 2012. You were diagnosed with epilepsy in childhood and continue treatment by medication. You have periodic seizures. This has been aggravated in times of heavy drug use. You began using drugs at 15 or 16. You met Aaron Dalton in that context. I accept that in the 18 months prior to offending and arrest, you were using methylamphetamine in an increasingly and, ultimately, very heavy way. This was the context for your involvement in this offending.
80 Psychologist Jeffrey Cummins' diagnoses at the time of offending "Adjustment disorder with anxiety and depressed mood", related to the ongoing effects of your parents separation in early teenage and the "directionless circumstances of your life". He also diagnoses "Stimulant use disorder". Mr Cummins states your drug addiction to be presently in "full early remission". As to these psychological diagnoses it was not argued that the Verdins principles play a significant role.
81 Rather, Ms Garde-Wilson placed heavy emphasis on what has happened since your offending and release on bail in late November or early December, the precise date has not been made precisely clear. It is clear that, conditioned on your bail, you entered the Birribi Drug and Alcohol Rehabilitation Program on 5 December 2012. It is a residential program and you remained there for the period of three months. The tendered report of Kath Elzinger states that you did well there. Urine drug testing indicated you to be drug free.
82 You then lived with your girlfriend for about two months. She relapsed into drug use and in early May you sought assistance for yourself from the Willum Supported Accommodation Program, also run under the auspices of YSAS. It was an insightful and encouraging decision. There are also reports tendered by Willum practitioners. They state positive progress assisted by the program. In July you obtained employment with Domenic Biviano and have commenced and continue a butchering apprenticeship at his business. His report is also tendered and he speaks highly of your performance. Mr Biviano appears highly supportive of you. You remain supported in Willum accommodation. You have begun a positive relationship with a young woman who is not a drug user and is supportive of you. You appear drug free. Negative urine testing results tendered continue into the early part of 2014.
83 On 27 May I requested reports as to your suitability for youth justice centre detention and also a community corrections order. You are found suitable for both. I quote at length from the report of Gene Bell, senior court advisor of the Department of Human Service as to youth justice detention centre suitability:
"The writer interviewed Justin for approximately 90 minutes where he presented as being quite nervous initially but maintained appropriate eye contact. He was polite and respectful throughout the interview and was easily challenged. He presented with positive insight into the issues pertinent to his offending behaviours and associated lifestyle and recognised that there are potentially many victims associated to his offending, at not least being his own family. The writer was encouraged by Justin's acceptance of responsibility for his role in the offences and his insight into the more subtle aspects of the relationships that he had formed and the behaviours associated with these persons. The writer was equally impressed by the lengths that Justin has gone to in order to address what appeared to be a significant dependence upon the illicit substance ice and the lifestyle that he developed during his association with co-offenders. There is no doubt in the writer's mind that Justin's prospects for long term and sustained rehabilitation are excellent. He has engaged in a range of professional services to address issues in his life. He has remained focused and determined to better himself in his future. The writer should note that the YSAS programs, Birribi Residential Rehabilitation Unit and the Willum Youth Supported Accommodation Program are both well-structured and intensive programs that the writer is very familiar with. Justin's successful interactions with each of these programs over a significant period of time is extremely impressive. Each of the programs have an abstinence policy and a high level of interaction with staff who can observe the client in their residential settings as well as conduct drug testing and if required or suspected, alcohol breath testing to enforce the policy. The writer contacted Justin's original YSAS worker, the current worker was unavailable at the time of interview, to confirm the level of engagement and gain a greater understanding of the efforts Justin has made with YSAS. Lucinda Leggett, youth outreach worker at YSAS stated to the writer that in her opinion Justin has shown a greater level of determination and commitment in addressing very difficult issues than most people she has worked with. Ms Leggett advised that Justin found some aspects of these life changes extremely isolating and difficult to manage, however he has directed his energy into worthwhile activities such as his employment. She noted that he was exceptionally focused upon gaining employment and was clearly targeting the meat processing field. He has so far been successful in maintaining his employment as an apprentice butcher, often working well in excess of the required minimum weekly hours. There is no doubt in talking with Justin that he enjoys his work and is proud of his achievements so far".
84 Mr Bell concludes:
"Taking into consideration the enormous and impressive efforts to turn his life around whilst on bail, the writer has formed the view that Justin Verry meets most of the criteria required in s.32 subsection 1a and 1b of the Sentencing Act and is therefore considered a suitable candidate for a youth justice centre order. However in the writer's opinion there is little that youth justice could offer Justin in the custodial environment that would continue to build upon his rehabilitation. Rather, a period of youth detention is almost certain to have a significant detrimental effect upon the progress he has made so far".
85 Mr Bell is an experienced court adviser and I have found his report insightful and helpful.
86 As I have stated and as applies to all accused before me, this was serious offending. I stated this when sentencing a co-offender. Drug trafficking is seen as a major community problem. This overall drug enterprise was expansive and sophisticated. It not only trafficked large amounts of harmful, dangerous drugs to the north east community, and often its vulnerable, but also conducted its business in a quite sinister way. Your role was and has been described as toward the lower end; however, it was also important. Drug trafficking enterprises of this kind require the participation of people like you.
87 Accordingly, the sentencing considerations of deterrence, particularly general deterrence, your moral culpability, denunciation of what you have done and the need for proportionate punishment are relevant matters. I have taken into account and attempted to properly weigh such sentencing considerations. Balanced against them are a number of factors very favourable to you. Ultimately I have decided to impose a sentence of community corrections order upon you. The matters that have particularly persuaded me to this unusual course, given the serious nature and circumstances of offending include the following.
(i) Your plea of guilty. I accept that you are genuinely remorseful. Your conduct since the offending is consistent with this.
(ii) The circumstances of your involvement. I accept that you were suffering drug dependence. As I have stated, your moral culpability remains high; however you are entitled, for example, to my consideration of your circumstances at a young age when you became involved.
(iii) Your otherwise good character.
(iv) Your youth and prospects for rehabilitation. Particularly important to this is your movement toward rehabilitation after release on bail in early December 2012. That is now about 18 months ago. You had been heavily using methylamphetamine. Your dependence had grown over a significant time. Your effort at rehabilitation from that drug dependence, as I and others in the tendered material describe it, should not be underestimated. I find that in the circumstances of this case it is in the interests of the community and consistent with sentencing principles that your further rehabilitation be encouraged.
88 I do not ignore the seriousness of your offending and have come to the decision not to impose a youth justice detention carefully and after difficult thought and consideration. Your age and efforts at rehabilitation have been critical factors in my decision. I also take into account that you have suffered some custodial punishment already. You were placed in adult remand for 77 days. I find that a relevant consideration in my decision not to impose further custody, but also to what is the appropriate punitive aspect of a community corrections order. I intend imposing a community corrections order of three years duration with the usual terms and also conditions directed at further punishment and further assistance to your rehabilitation. Stand up please.
89 I sentence you as follows on both Count 1, trafficking in a drug of dependence in a commercial quantity, and Count 2, trafficking simpliciter in a drug of dependence. I impose a community corrections order of three years duration.
90 The usual terms apply and the additional conditions that you perform 500 hours of unpaid community work over three years, that there be assessment and treatment for drug use, that there be supervision and that there be mental health assessment and treatment.
91 Had you not pleaded guilty to this matter I would have imposed a sentence of youth justice detention of three years.
92 There are forfeiture orders. I can do that at the end. Now, those documents need to be prepared and I need at a later time to ask you to enter them. You may come out of the dock and sit close to your barrister. Subject to the forfeiture orders but we can deal with that later.
93 Joshua Dalton, at 27 you are the younger brother of Aaron Dalton who is aged 32. Your criminal record filed in the proceedings states two court appearances in 2010 for street offences and in 2008 for affray and recklessly causing injury. I do not see your prior convictions as highly relevant to this sentence. Your period of involvement is about 12 months. Your September 2012 statement to the police states eight to 12 months. Written submissions put on your behalf state about 12 months. Mr Tyrrell for you placed emphasis on the fact that, as is not challenged, the quantity of drugs for which you are to be sentenced lie toward the lower end of commercial quantity. He placed emphases on the circumstances and, therefore, candour of your second interview and particularly statement to police on 18 September 2012. The Crown summary in significant part relies upon this as to your role.
94 When first interviewed by the police you exercised your right to silence. In a formal interview on 18 September you made denials including about involvement of and with your brother. As I was told, your father spoke to you in custody and you then made a statement to police admitting your offending and implicating your brother and others. You stated that you sold drugs for your brother. It began on a small scale and grew bigger. It began by selling quarter ounce deals of ice "here and there".
95 Mr Tyrrell stated that you were not consistently involved in the business. You told police that you could collect the drugs from the various places at which the group were staying; but that also drugs would be delivered to you. You were motivated by the prospect of easy money to help set up you and your family. You were an occasional recreational drug user, including methylamphetamine; but not dependant on drugs. At the time you were employed in your own business as a plasterer which you had run from your age of 22.
96 The summary offences before me relate to your arrest at your grandmother's home in Wangaratta in late August 2012. Amongst other things you were in possession of $19,000 in cash. That is the dealing with proceeds of crime charge. You have admitted the use of a drug of dependence, amphetamine. I intend imposing concurrent sentences for these two offences. Particularly I find that I should see the proceeds of crime offence as inextricably related to the indictable charge of trafficking.
97 You are as stated a 27 year old man who was raised and educated in Wangaratta. Your family is close, law abiding and supportive of you. Besides your older brother, you have a sister. After leaving school at 16 with Year 10, you completed an apprenticeship in plastering. You worked for about one year in local abattoirs where your father is a long term employee. At 22 you began your own plastering business. You live in a stable relationship and have a young daughter aged two. Your partner also has an older child, your stepson, who is aged four. After serving about four months in remand custody you received bail in January 2013. Whilst in remand it was necessary to place you in the protection system. On release you became employed as a plasterer and presently work in that trade, at this time, mainly in Melbourne. You return to stay with your family each fortnight.
98 I refer to my earlier description of this offending and the need to meet the relevant purposes and considerations. Your role within the broad offending is said to have been somewhat sporadic; but it was significant and the period prolonged. It was born of desire for financial benefit. I am not persuaded that you did not have some understanding of the extent of your brother's enterprise and its methods.
The appropriate sentence in my view must be a sentence of imprisonment beyond what has already been served. There are factors which should moderate the length of your term. They include the following.
(i) Your plea of guilty and cooperation with the investigation and proceedings. Mr Tyrrell emphasised your cooperation and your expressed willingness to give evidence at trial against others. This did not get to the point of a sworn undertaking to do so and as in the cases of other offenders such as Blackman, Chandler and Griggs.
(ii) The circumstances of your involvement included an aspect of influence by your brother.
(iii) You have genuine prospects for rehabilitation, given the support of your partner, family, employment skills and apparent work ethic. The tendered work and character reference evidence speaks well of you. I am told that there has been no further offending.
99 After considering what I see to be the relevant and competing factors, I have decided upon the following sentence. Stand up, please.
100 On one charge of trafficking in a drug of dependence in a commercial quantity, you are sentenced to two and a half years' imprisonment.
101 On the summary charges, deal with proceeds of crime, four months' imprisonment and;
102 Using a drug of dependence, one month's imprisonment.
103 That is a total effective sentence of two and a half years' imprisonment.
104 I set a minimum term before eligibility for parole of 15 months.
105 Is the s.18 period 115 days?
106 Whilst that is being advised to me, I indicate that had you not pleaded guilty, I would have sentenced you to a period of four years with a minimum term of two and a half years.
107 What is the s.18 period? I was told 115 days.
108 MS GARDE-WILSON: I believe it is, Your Honour.
109 HIS HONOUR: I declare under s.18 a period of presentence detention of 115 days.
110 Forfeiture orders are sought?
111 MR PERRY: Yes, Your Honour.
112 HIS HONOUR: In respect of what sort of material?
113 MR PERRY: And the retention order also.
114 HIS HONOUR: Yes. What drugs and/or cash and ‑ ‑ ‑
115 MR PERRY: Forfeiture order for the cash and disposal orders ‑ ‑ ‑
116 HIS HONOUR: Yes. They are not opposed?
117 MS GARDE-WILSON: No, Your Honour.
118 HIS HONOUR: I make those orders and will sign them in chambers. There's an application for retention of a saliva sample. The reasons why I will grant the application are the serious nature of the offending, that you have some prior criminal history and that it is, in my view, emphatically in the public interest that such an order be made.
119 May he be taken to custody now?
120 MR PERRY: Yes, Your Honour.
121 HIS HONOUR: Take Mr Joshua Dalton into custody, please.
122 Aaron Dalton, you were the main player and controller of the enterprise. You bear responsibility for its extent, the damage such offending causes and its sinister nature.
123 You are also to be sentenced for other offences arising out of your drug trafficking business.
124 Charges 3 and 4 on your indictment relate to the assault, recklessly causing serious injury and false imprisonment of a man named Dean Evans in early September 2012. I stated in my sentence of co-offender Dean Griggs as follows. I stop to say that this factual description applies equally to your role.
"In early September you [meaning Griggs] went with Verry, Aaron Dalton and another person to an address in Wangaratta looking for Crusham Chandler. I have sentenced Chandler earlier in this circuit. He had left the syndicate in June or July and was being threatened and intimidated as a result. The tendered Crown opening in your case [meaning Griggs] states that you and the others were looking for Chandler with respect to an alleged debt of $60,000. Chandler was not there but a man named Dean Evans who lived with Chandler's cousin was present. You were instructed by Dalton to assault him. It was a prolonged and brutal assault. The Crown opening states as part of Paragraph 15, 'Dean Evans who was present was being questioned regarding Chandler's whereabouts. He was not permitted to leave and was threatened, after which the accused [Griggs] was directed by Dalton to hit him. He was struck to the face and punched to the head and received a broken nose and lost tooth. He was unable to estimate the precise number of blows received but after taking two days off work because of the pain of his injuries, he fainted at work and went to the Wangaratta Hospital where an X-ray also revealed a fracture to the front of the skull in addition to his other injuries. He continues to have trouble breathing nasally as a result of the assault.’”
125 As stated, these things were done at your direction. I see that as an important consideration. I need to say this, Verry drove to the address. He has not been charged or sentenced for involvement in these offences. Dean Griggs was sentenced for intentionally causing serious injury. You are to be sentenced for the less serious offence of recklessly causing serious injury. Griggs received sentences of two years and 12 months for intentionally causing serious injury and false imprisonment. There were orders for partial cumulation and concurrency. Bradley Whinray received 12 months' imprisonment for the offence of false imprisonment. Again there were orders for partial cumulation with other sentences.
126 The treatment of Evans is in my view a chilling insight into the methods to which your criminal enterprise was capable of resorting.
127 On Charges 5, 6 and 7 on your indictment, offences of reckless conduct endangering serious injury, affray and arson, relate to the one episode. In September 2012, whilst travelling with others between Wangaratta and Myrtleford, you recognised a man named Corboy in another car. On your direction, he was chased. His car was rammed and forced off the road. Its occupants were chased. One of your associates, Whinray, was armed with a baseball bat. Victims escaped and your group burnt and destroyed the car. I have had reference to the sentence imposed on the others involved.
128 At 32, you have a number of prior criminal convictions. The criminal history attached to your indictment states seven Victorian court appearances between December 2004 and April 2009. I interrupt to say this, Mr Perry, I would be obliged if you would check the second date, I have miswritten it but my recollection is it is April 2009. I return to my reasons.
129 MR PERRY: May I ask the second date of what, Your Honour.
130 HIS HONOUR: Of his prior criminal history in Victoria, the last court appearances.
131 MR PERRY: Thank you, Your Honour.
132 HIS HONOUR: It must be said that some of these appearances related to appeals and/or breach matters in the same proceedings. There are offences of violence and drug related offences, including trafficking. These are clearly relevant to your sentence, bearing in mind the nature and circumstances of these present offences. There is also less serious prior offending in New South Wales. These offences do not have much significance.
133 You were raised in Wangaratta as the eldest of three in a law abiding, functional family. Your parents remain supportive of you. There were difficulties at both primary and secondary school and you seem to have been asked to leave two schools. You left Wangaratta High School during Year 11. You worked in an abattoir where your father was employed and began but failed to complete a butcher's apprenticeship. I have been told little about employment after that. There was a time in Wagga looking after your child with your partner working at her hairdressing business. That has been a significant relationship; however in 2012 it broke down, likely in the context of your drug abuse and uncontrolled behaviour. Your ex-partner has remained supportive and has visited you in prison with your daughter.
134 Your father gave evidence proffering the opinion that the deterioration and breakdown of your relationship played a role in the acceleration of your drug use and drug dealing. You were also disaffected from your parents.
135 You have been a talented sportsman and during early and then late teenage to early adulthood competed at national level as a road cyclist. The late teenage period was one of more settled, drug free behaviour. Sadly your ambitions to join the Australian Institute of Sport and compete internationally were not fulfilled. Your father stated disappointment in your early 20s to be a cause of decline.
136 You have used and then abused drugs since mid-teenage. You were using methylamphetamine at about 17. Decline into renewed drug use occurred during your early 20s and it seems to have continued, with periods of rehabilitation which have not lasted. In custody you were admitted to Thomas Embling Hospital with what seems likely drug induced psychosis in 2004. You were admitted again in October 2012 after arrests for these matters; but that was short lived and the symptoms dissipated. Over time you have moved out of those parts of prison requiring such care and have begun to cope well. Mr Hartnett pointed to a number of rehabilitation and education programs in which you have participated.
137 I accept the proposition put that you were heavily using and dependent upon methylamphetamine and like drugs during the time of this offending. The Crown does not allege or put evidence of financial betterment, that is despite the level and extent of the trafficking enterprise you controlled. It is likely that the moneys acquired contributed to and were dissipated in what seems an extravagantly wild, dysfunctional and drug abusive lifestyle. This case is truly a cautionary tale about the risk and damage inherent in use and distribution of drugs such as methylamphetamine.
138 You seem accepting of a substantial period of imprisonment and have ambitions of further rehabilitation and education during your sentence and you say, after release.
139 I do not seek to repeat my earlier descriptions of your offending, its seriousness and damaging assault upon the North East Victorian community. Damning rhetoric is not to the point. You must now bear the burden and result of controlling the trafficking business I have so described. Self-evidently, such sentencing purposes as deterrence, denunciation and punishment are important. Your moral culpability is very high. General deterrence is, again self-evidently, very important.
140 The serious nature and circumstances of your offence and such sentencing considerations require a very substantial period of imprisonment.
141 There are matters that to some extent moderate that sentence. They include the following.
(i) Your plea of guilty and cooperation in the proceedings.
(ii) I bear in mind Mr Hartnett's caution against double punishment. Aggravating features of the drug trafficking offences include such brutal intimidation as revealed in the other charges on which you are to be sentenced. Appropriate individual sentences and some partial cumulation is necessary but that should be moderate and the principle of totality met.
(iii) I should not impose a sentence which is unduly crushing. Given your life so far, its abuse of drugs and level of offending, particularly this offending, it would be naïve to state high prospects for rehabilitation. However, I should not discount your expressed hopes for that. You present as a capable man, well supported by people around you.
Mr Hartnett argued for a lower than usual minimum term and I have given some consideration to this.
142 Ultimately there must be a sentence which meets the seriousness and criminality of your offences. Doing the best I can to take into account the relevant matters, I sentence you as follows. Stand up, please.
143 On Charges 1 and 2, trafficking in a drug of dependence in a commercial quantity, you are sentenced to eight years' imprisonment on each.
144 On Charge 3, causing serious injury recklessly, the assault on Evans, you are sentenced to two years' imprisonment.
145 On Charge 4, false imprisonment of Evans, you are sentenced to 15 months' imprisonment.
146 On Charge 5, reckless conduct endangering serious injury, you are sentenced to nine months' imprisonment.
147 On Charges 6 and 7, affray and arson, you are sentenced to six months' imprisonment on each.
148 I direct that nine months of the sentence on Charge 3 and three months of the sentence on Charge 5 be served cumulatively upon the sentence for Charge 1 and upon each other.
149 That is a total effective sentence of nine years.
150 I set a minimum term of six and a half years before eligibility for parole.
151 What is the s.18 period?
152 MR PERRY: It appears that of today, Your Honour, that is 643 days.
153 HIS HONOUR: I declare 643 days of presentence detention under s.18. Just excuse me for a moment.
154 Had you not pleaded guilty of this matter I would have imposed a sentence of 13 years with a minimum term of ten years.
155 I similarly grant the application for retention. It is not necessary. I make the orders for forfeiture that have been applied for, they relate to drugs and other related matters.
156 MR PERRY: Thank you, Your Honour. Your Honour asked me to clarify a date.
157 HIS HONOUR: Yes.
158 MR PERRY: The last date recorded on the history is 6 April 2009.
159 HIS HONOUR: Yes, thank you. May Aaron Dalton be taken to custody.
160 MR PERRY: Yes, Your Honour.
161 HIS HONOUR: Yes. What else needs to be done.
162 MR PERRY: There are another two community corrections orders.
163 HIS HONOUR: Yes. Now those others who were representing the men who have been sentenced to imprisonment are excused and may go. That means that Ms Garde-Wilson remains for Verry and Mr Purcell, yes. You are excused. Sorry, what is your name?
164 MR STOKES-HORE: Richard Stokes-Hore.
165 HIS HONOUR: Yes, and you are excused, Mr Hartnett.
MR HARTNETT: Thank you, Your Honour.
166 MR PERRY: Can I take the liberty of handing some forfeiture orders to Your Honour for perusal at an appropriate stage?
167 HIS HONOUR: Yes. Well, I will sign those now. They will be sent to me later, will they?
168 MR PERRY: They are available for perusal by Your Honour later, there is a fair bundle of them, Your Honour.
169 HIS HONOUR: Well if they are sent to me in chambers I will sign them there. They have not been opposed.
170 All right, now we will deal with Ms Howarth. Just excuse me for a moment. Stand up, please, Rebecca Howarth.
171 As I told you earlier, for your offending you are being placed on a community correction order. It will last for three years; that means it ends on 17 June 2017. The usual terms are these, that you must not commit another offence for which you could be imprisoned during the time that the order is enforced. I stop to say this, that you would be brought back before me and you would have to be resentenced for these matters. I think it would be fairly clear to you what that further sentence would be. I need to say this to you, that you should not be confused by the phrase "could be imprisoned". Most offending, including possession of small amounts of drugs such as methylamphetamine, entail the possibility of imprisonment and that would be enough.
172 You must comply with any obligation, a requirement under what is called Regulation 17 of the Sentencing Regulations Act. As I understand it, that means that you must not attend any appointment or obligation in this order affected by drugs or alcohol or in possession of illegal drugs. You must report to and receive visits from community corrections. You must report to the relevant community corrections centre within two clear working days. You must let a community corrections officer know within two clear working days of changing your address or job.
173 You must not leave Victoria - well, I think this one needs to be deleted - without first getting permission to do so. So I will just put a line through that. That just would not apply if she is living in Gosford, would it?
174 MR PERRY: Arguably it would apply for the first occasion to get her up there, Your Honour, but I do not take any issue with the condition being deleted.
175 HIS HONOUR: Well, they are the required conditions. I will leave it in but it is pretty clear what is meant.
176 MR PERRY: It is clear on the record, Your Honour.
177 HIS HONOUR: What you want to do is raise this with the people in Gosford and make sure you get a broad permission to live in Gosford. I am sure they will attend to it.
178 MR PERRY: She certainly has some protection of transcript.
179 HIS HONOUR: Yes.
180 Now, you must obey all lawful instructions and directions from the community corrections people. The additional conditions are that you perform 500 hours of unpaid work over three years as directed, that you be under supervision of a community corrections officer, that would be in New South Wales, that you undergo assessment and treatment for drug abuse or a dependence, you undergo assessment and treatment for alcohol abuse or dependency and that you undergo mental health assessment and treatment as directed.
181 The other order is this, that you, upon leaving the state of Victoria, are required to report to the Gosford community corrections office in Donnison Street, Gosford. Now, when are you going back?
182 OFFENDER HOWARTH: Um, probably tomorrow.
183 HIS HONOUR: All right. You had better be there by the end of the week otherwise there will be trouble.
184 OFFENDER HOWARTH: Yeah.
185 HIS HONOUR: All right, do you know where it is?
186 OFFENDER HOWARTH: Yes.
187 HIS HONOUR: All right. Now, do you understand the effect and conditions of this order?
188 OFFENDER HOWARTH: Um, yeah.
189 HIS HONOUR: Yes, and do you consent to it being made. I will get you to sign it and then I will sign it.
190 Mr Perry, is there anything else I need to say or do in respect of Rebecca Howarth?
191 MR PERRY: No, Your Honour.
192 HIS HONOUR: Mr Purcell will explain to you what this means. It is not over. Three years is a pretty long time, if you commit an offence of the necessary type you will be coming back before me, all right, do you understand that?
193 OFFENDER HOWARTH: Yes, Your Honour.
194 HIS HONOUR: You can go now. Thank you, Mr Purcell.
195 MR PURCELL: May I be excused, Your Honour.
196 HIS HONOUR: Yes.
197 MR PURCELL: Thank you.
198 HIS HONOUR: All right, stand up please, Mr Verry.
199 For your offending I have imposed a community corrections order of three years; that ends on 17 June 2017. Now I am going to read out to you the standard conditions and the additional conditions for you. I want you to listen to them and I will be asking you whether you understand them at the end. You are not to commit another offence for which you could be imprisoned during that time. Did you hear what I said to Howarth, you understand what that means. Small amounts of drugs such as methylamphetamine, you would be back before me. You must comply with obligations or requirements under Regulation 17, you heard what I said about that before.
200 You must report to and receive visits from the community corrections people. You must report to the community corrections centre at Broadmeadows, the address is here on the document, within two clear working days. You must let a community corrections officer know within two clear working days of changing your address or job. You must not leave Victoria without first getting permission to do so. You must obey all the lawful instructions and directions of community corrections.
201 The special conditions are these; that you perform 500 hours of unpaid community work over three years as directed, that is about - how many hours a week is that, Mr Perry, you have been doing the arithmetic.
202 MR PERRY: I have been threatened with the order being made against me, Your Honour, I have never had one made. Probably work out about ten hours ‑ ‑ ‑
203 HIS HONOUR: No, it would be less than that, I take it. It would be three or four, I think.
204 MR PERRY: I am told three and a bit by a most impeccable source, Your Honour, I accept that.
205 HIS HONOUR: Yes, that is right, three or four. Thank you.
206 500 hours over three years, all right. So you will have to organise that with Mr Biviano. But you have got to do it, and if there are problems given you are working you have got to let corrections know and work around it. A lot of people breach these orders because they do not communicate with people. That you be under supervision of the community corrections officer for that period, that you undergo assessment and treatment for drug abuse or dependency and that you undergo mental health assessment and treatment as directed.
207 Now do you understand all of that? Do you agree to it?
208 OFFENDER VERRY: Yep.
209 HIS HONOUR: All right. I will hand this down to you and ask you to sign it.
210 The man three or four up from you when you were sitting in the dock got nine years. That is where this sort of stuff goes. If you got nine years it would ruin your life so I hope you have learnt something. It was a close run thing that you would not go to Malmsbury and I can assure you of that. I would not have said that if I did not mean it.
211 All right, there you are. Is that it?
212 MS GARDE-WILSON: Yes, Your Honour.
213 MR PERRY: Yes, Your Honour.
214 HIS HONOUR: Thank you for your assistance. Yes, you are excused. I will wait for the next case.
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