Director of Public Prosecutions v Daniels (a pseudonym)

[2024] VCC 315

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRISTAN DANIELS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2024, 7 February 2024, 28 February 2024
DATE OF SENTENCE:	18 March 2024
CASE MAY BE CITED AS:	DPP v Daniels (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 315

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – attempt to traffic large commercial quantity of drug of dependence – traffic drug of dependence – possess drug of dependence –knowingly deal with proceeds of crime – plea of guilty – rehabilitation – Drug and Alcohol Treatment Court
LegislationCited:	Sentencing Act 1991 (Vic) ss 6AAA and 18(4)
CasesCited:
Sentence:	Drug and Alcohol Treatment Order, custodial part of 47 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tamburro	Office of Public Prosecutions
For the Accused	Ms J. Poole	McNally & Gleeson Lawyers

HIS HONOUR:

1Tristan Daniels,[1]  you have pleaded guilty to one charge of attempting to traffic in a drug of dependence no less than a large commercial quantity, (Charge 1), for which the maximum penalty is a term of life imprisonment, one charge of trafficking in a drug of dependence, (Charge 7), for which the maximum penalty is a term of imprisonment of 15 years, one charge of possession of a drug of dependence, testosterone, (Charge 2), for which the maximum penalty is a term of imprisonment of 5 years, nine charges of possession of drug of dependence (Charges 3, 4, 5, 6, 8, 9, 10 and 11), for each of which the maximum is a term of imprisonment of five years, and one charge of knowingly deal with proceeds crime, (Charge 12), for which the maximum penalty is a term of imprisonment of 15 years. 

[1] A pseudonym.

2Tendered as Exhibit 1 on the determination hearing was a summary of prosecution opening which set out the agreed facts of your offending and in brief the circumstances were as follows.

3Between 21 February 22 and 2 March 2022, Australian Border Force intercepted three separate shipments of 1,4-Butanediol.  Each shipment comprised of 100 small while bottles labelled 'glycerine hand oil, 100 mils'.  The bottles taken together had a combined total weight of 50.43 kilograms (Charge 1).  The consignee's name on each of the shipment was John Kairou. The details of the consignments were as follows. 

·        Consignment numbered SCA108155227 had a delivery address of City Road, Southbank. 

·        Consignment numbered SCA108155233 had a delivery address of Vale Street, St Kilda.  The contact phone number on that package was ending in 277.

·        Consignment numbered TSN3527000265 had a delivery address of City Road, Southbank.  The contact phone number on this package was ending in 277.  That '227' number was registered in your name. 

4Police were notified and identified you as being connected to those packages. On 12 April 2022, Victoria Police executed a search warrant at City Road, Southbank.  You were arrested entering the premises.  Both you and an Amy Snyder,[2] who at that time was your partner, were present during the search.  Police located and seized the following items:

[2] A pseudonym.

(i)In the hallway filing cabin, a vial containing 10 grams of testosterone enanthate, (Charge 2). 

(ii)Two vials containing 20.7 grams of trenbolone, (Charge 3). 

(iii)A vial containing 9.7 grams of testosterone isocaproate, (Charge 4). 

(iv)A vial containing 9.9 grams of nandrolone, (Charge 5). 

(v)A vial containing 8.5 grams of boldenone, (Charge 6). 

(vi)A black diary with a master plan on the front cover and a grey diary.

(vii)Located on the side table in the lounge room was $500 in cash.

(viii)A small Ziploc bag containing six tablets of psilocybin, otherwise known as magic mushrooms, weighing a total of 3.7 grams (Charge 10). 

(ix)A Ziploc bag containing broken tablets of MDMA, or ecstasy, weighing a total of 0.4 grams, (Charge 8). 

(x)Two Ziploc bags containing five tablets of psilocybin and some dried psilocybin powder, (Charge 10), weighing a total of 2.8 grams.

(xi)Sixteen tablets containing a total of 180 milligrams of lysergic acid diethylamid, otherwise known as LSD,  (Charge 9).

(xii)Located on a coffee table in the lounge room, a Ziploc bag containing 115.3 grams of methamphetamine, (Charge 7). 

(xiii)Four Ziploc bags containing a total of 39.3 grams of methylamphetamine with labels including 'Oz New' and 'Tea', (Charge 7). 

(xiv)A black metal bottle containing 239.7 grams of 1,4-Butanediol, (Charge 11). 

(xv)A set of digital scales, a Ziploc bag containing 0.7 grams of methylamphetamine with a marker '17' on it and a drawer of unused clear Ziploc bags and a Ziploc bag containing 1.4 grams of methylamphetamine labelled 'washed'. 

(xvi)Located in the lounge room was a Kogan brand cash counter, plastic water bottle containing 209.2 grams of 1,4-Butanediol, (Charge 11), and another large black diary dated 2022. 

(xvii)Lastly, located in a dresser in the bedroom, a Victorian, Indian & Bangladeshi driver's licence in the name of Hardic Okarni, a Victorian driver's licence and Medicare card in the name of Bigun Miagmar, a Medicare card in the name of Go Jaji and a probationary Victorian driver's licence in the name of Mohammed Aviv, and all of those items are the subject matter of (Charge 12).

5Further enquiries identified that those cards had all been stolen.  There is no suggestion that you had any part to play in the theft.  Police also seized your satchel bag containing your wallet, a black Samsung mobile phone and
Ms Snyder’s black iPhone.  Your wallet contained a Visa card in the name of John Kairou and $510 in cash. 

6You were taken to Southbank police station and interviewed.  During that record of interview, you made some admissions including that:

(i)the steroids located by police were the only drugs found that were yours,

(ii)you were not sure if the methamphetamine were yours,

(iii)you cannot remember if police found 1,4-Butanediol,

(iv)you did not have any in the apartment and you usually buy it a litre at a time,

(v)that you had never seen the stolen identification cards in the bedroom before and you had never used the card belonging to John Kairou,

(vi)you did not know about the packages and could not say why some had your phone number and address on them.

(vii)You ordered a couple of packages on Alibaba, however they never arrived,

(viii)you ordered them after Christmas and had them sent to yours and Alex Houst’s[3] address at Vale Street, packages being a reference to 1,4-Butanediol, and

(ix)that you were expecting to receive 10 litres of

[3] A pseudonym.

1,4-Butanediol to your address and 10 litres to Mr Houst’s address and they were for personal use. 

7Subsequent analysis of your phone showed you were using encrypted apps with timing deleted.  These apps contained email addresses, contact images and conversations relating to the trafficking of methylamphetamine, 1,4-Butanediol and also cocaine.  A sample of 200 chats were analysed, 66 of which related to drug trafficking by you and Ms Snyder between 7 and 12 April.  Now I note that the trafficking charge is a single date charge only. The interrogation of your phone merely goes to the nature and extent of the enterprise which you were conducting.

Personal Circumstances

8I now turn to your personal circumstances.  You were born on December 1990 and you were 31 at the time of this offending.  You are now 33.  Your parents separated prior to your birth and you have one brother and one sister, from your parents re-partnering. You last saw your mother, your birth mother, when you were 15 and you began seeing your father about five years ago. I was told (Exhibit 6JS) that you were not close, but I note that he has given evidence on this determination hearing and it is intended that you should live both with him and your paternal grandmother upon your release into the community.

9You grew up with your paternal grandmother and her partner in Broadmeadows until you were 12 years of age before you moved to Perth for several years.  You attended relevant local primary schools until completion of Year 6.  You reported to Ms Carla Lechner, forensic psychologist, (Exhibit 6JS), that your learning ability was very disrupted and that you found it difficult to concentrate and you were regularly in trouble for fighting and other misbehaviours.  You put this down to the turbulence in your home life; to your sense of feeling completely abandoned by your mother.

10You have been diagnosed with attention-deficit hyperactivity disorder for which you were prescribed dexamphetamine for some time.  You attended local high schools but were expelled for alleged violence and also for smoking. Your home environment can only be described as disturbing.  It was transient and characterised by the absence of key parenting figures.  Your father was addicted to heroin and you were regularly the subject of brutal chastisement which can only be regarded as family violence.

11At the age of 12, DHS, Department of Health & Human Services, were informed when you arrived at school with two black eyes. Unfortunately, this only led to a so-called 'family friend' looking after you, who perpetrated their own abuse upon you.  At age 13, you were sent to Perth in the light of your apparent behavioural issues to live with your mother. It seems that rather than look at the causes underlying your behaviour and the terrible things that had been done to you those in control held you to be to blame and so you were in effect shunted off to go and live with your mother.

12And at that stage, you began to use methamphetamine after being introduced to the drugs by your uncles.  Here you began making ice, stealing from chemists and you were sentenced to six months in juvenile detention in Western Australia.  You began using ice, methamphetamine, regularly at 24 and that has been your primary drug of concern since then. You have had only limited periods of abstinence when you have been in the community, and you have also at times been a daily user of GHB.

13Later in your adolescent years, you met Ashlee[4] and partnered with her, and she is the mother of your three children.  You have described this relationship as being on and off for some time and when this relationship ended, you became disconnected from your children.  However, more recently and particularly in light of the abstinence that you have demonstrated whilst on remand for these offences, you have begun regaining the trust of Ashlee and she has represented to you that if you manage to maintain abstinence, you may be able to reconnect and rebuild your relationship with your children. You cite this as a motivational factor for your application to this court and a driver of your determination to make this order work.

[4] A pseudonym.

14You struggle with anxiety and depression and have done over many years and you describe that as your primary mental health concern. 
Ms Lechner's report identified symptoms of complex post-traumatic stress disorder, adult ADHD, major depressive disorder and a stimulant and opium use disorder and you are currently prescribed the antidepression medication, amitriptyline.  You are currently remanded on the charges before this court and have been since your arrest. 

15For the last 18 months, you have been on methadone.  This has enabled you to remain drug-free, the longest period of abstinence that you have achieved outside of custody. That is a significant achievement which you should be proud.  You have a family history of family violence.  There are no current family violence intervention orders in which you are respondent.  The most recent one, as I understand matters, being active in 2016. 

16Your criminal history shows that you have been convicted for offending including interpersonal violence, contravening intervention orders, possession of drugs of dependence, trafficking of drugs of dependence, theft, criminal damage, driving-related offences and contravening community correction orders, disorderly conduct, fraud, possession of weapons and ammunition, and dealing with proceeds of crime. You have been dealt with by means of imprisonment, community correction orders which you have breached and fines. Your longest period of imprisonment to date has been a term of imprisonment of 12 months.

17You were placed upon a drug treatment order in the Melbourne Magistrates' Court in 2017.  That order was ultimately cancelled, after your failing to gain access to your children led to your absconding. Now whilst of course you do not fall to be sentenced again for matters already dealt with by the courts, your prior criminal history does impact my assessment of the need for specific deterrence, your prospects for rehabilitation, your moral culpability, and the need to protect the community from you.

18The particular purposes of a drug and alcohol treatment order are to facilitate your rehabilitation by providing a judicially supervised, therapeutically oriented, and a combined, integrated drug and alcohol treatment and supervision regime.  That means you both receive treatment, but it is also supervised and monitored ultimately by the judge.  Secondly, it is to take account of your drug and alcohol dependency.  Thirdly, it is to reduce the level of criminal activity that associated with drug or alcohol dependency and finally, to reduce the health risks associated with drug or alcohol dependency.

Submissions of Counsel

19Mr Tamburro, on behalf of the Director, submitted that these offences were simply too serious taken together to place you on a DATO. In addition your past non-compliance on community-based orders, compelled the finding that ultimately you were not a suitable candidate for a drug and alcohol treatment order. I should proceed to sentence you by means of a head sentence and a non-parole period.

20Ms Poole, learned counsel on your behalf, submitted that, notwithstanding the very evident and concerning challenges you have, a sentencing disposition of Drug and Alcohol Treatment Court Order was an appropriate disposition in your circumstances and the circumstances of your offending. 

Findings

21I have considered this matter long and hard, Mr Daniels.

22On all the material in front of me I am satisfied on the balance of probabilities that:

(i)you have a poly substance dependency (methamphetamine; opioids, GHB)

(ii)that your dependency contributed to the commission of the offending in front of me

(iii)that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years and

(iv)that you are not charged with offending nor are you subject to any order that would make you ineligible for a DATO. 

(v)that it is appropriate in all the circumstances to make such an order.

23A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

24The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

25The core conditions will operate for 24 months, or until further order.

26And, the program conditions specifically tailored to your needs and presentation.

27The second part of the DATO is a custodial part and that custodial part is 47 months' imprisonment, three years 11 months. That is made up as follows.

28Charge 1, 39 months.  Charges, 2, 3, 4, 5, 6 and 8, an aggregate sentence of four months.  Charge 7, 20 months.  Charges 9 and 10, an aggregate sentence of four months.  Charge 11, three months and Charge 12, five months.

29I am ordering that six months of the sentence on Charge 7, one month of the aggregate sentence on charges 9 and 10, and one month of the sentence on Charge 12, run cumulative to each other and cumulative to the sentence on Charge 1.

30Pursuant to s 18(4) Sentencing Act 1991 Tristan DANIELS has served 706 days of Pre-Sentence Detention.

31Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for the accused's plea of guilty, a total effective sentence of 5 years and 6 months imprisonment, with a non-parole period of 4 years would have been imposed.

32Now, you are also at this point waiving all rights of confidentiality of communications between the Drug Court on the one hand and on the other hand, all treatment providers, all Government agencies, authorities and Departments.  Do you understand what you are doing, Mr Daniels

33OFFENDER:  Yes

34All right, now I am going to ask you a question, Mr Daniels.  Do you consent to being placed on a drug and alcohol treatment order?

35OFFENDER:  Yes