Director of Public Prosecutions v De Palma

[2024] VCC 226

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02005

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYSON DE PALMA

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2023
DATE OF SENTENCE:	23 February 2024
CASE MAY BE CITED AS:	DPP v De Palma
MEDIUM NEUTRAL CITATION:	[2024] VCC 226

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:

Cases Cited:DPP v Moustafa [2018] VSCA 331; DPP v Obian (2023) VSCA 18; DPP v Richardson [2023] VSCA 241; Gayed v R (2021) VSCA 141; Gregory (a pseudonym) v R (2017) VSCA 151; Childs v State of Western Australia [2023] WASCA 145; Worboyes v The Queen [2021] 96 MVR 344.

Sentence:13 years imprisonment; non parole period of 7 years and 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Thomson	Office of Public Prosecutions
For the Accused	Mr S. Norton	Stary Norton Halphen

HIS HONOUR: 

1Jayson De Palma, you have pleaded guilty to the following charges which carry the following maximum penalties:

Charge No.	Offence	Maximum Penalty
1	Attempt to Traffick in a Large Commercial Quantity of 1,4-Butanediol	Life imprisonment
2	Attempt          to Possess a Precursor Chemical,  Hypophosphorous Acid	5 years imprisonment
3	Trafficking in a commercial quantity of Testosterone	25 years imprisonment
4	Possession of a Precursor Chemical, Iodine	5 years imprisonment
5	Cultivation of Narcotic Plants	15 years imprisonment
6	Trafficking in a drug of dependence, MDMA	15 years imprisonment
7	Trafficking in a drug of dependence, Lystergic Acid Diethylamide (LSD)	15 years imprisonment
8	Trafficking in a drug of dependence, Nandrolone	15 years imprisonment
9	Possession of a drug of dependence, Trenbolone	1 year imprisonment or 30 penalty units or both
10	Possession of a drug of dependence, Oxymetholone	1 year imprisonment or 30 penalty units or both
11	Possession of a drug of dependence, Stanozolol	1 year imprisonment or 30 penalty units or both.
12	Possession of a drug of dependence, Oxandrolone	1 year imprisonment or 30 penalty units or both.
13	Possession of a drug of dependence, Mesterolone	1 year imprisonment or 30 penalty units or both.
14	Possession of a drug of dependence, Boldenone	1 year imprisonment or 30 penalty units or both.
15	Possession of a drug of dependence, Drostanolone	1 year imprisonment or 30 penalty units or both.
16	Possession of a drug of dependence, Methandienone	1 year imprisonment or 30 penalty units or both.

2As you will be convicted of an attempt and not the completed offence on
Charge 1, the standard sentence provisions do not apply.

3As I say, Charge 1 is a Category 1 offence. That simply means that a prison sentence (which, as you understand is inevitable) with a non-parole period must be imposed.

4As I have said, you are to be sentenced as a serious drug offender for Charge 3; I will say more about that later in these remarks.

5You have no prior criminal history and no matters outstanding. I will also say something about that later in these remarks.

6I will turn immediately to the contested issue that was raised at the outset of the plea.

Circumstances of Offending – Contested Facts

Attempt to Traffick a Large Commercial Quantity of 1,4 Butanediol

7You have pleaded guilty to the charge of attempting to traffick a large commercial quantity of 1,4 butanediol.  The Crown alleges that you attempted to traffick 5.1 tonnes of the drug. You dispute that you knew the amount of the drug involved.

8A large commercial quantity of 1, 4 butanediol, I am going to call it BTD, is defined in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 as 20 kilograms.

9The matter therefore proceeded as a contested plea on the facts before me.

10Mr Norton, who appeared on your behalf, submitted that on the evidence, I should be satisfied that you knew the consignment consisted of one steel
44-gallon drum, that is, 165 kilograms of BTD, and one plastic drum containing 174 kilograms of hypophosphorous acid.

11It is necessary to outline the essential circumstances of the offending in order to make an assessment of this issue.

12On 8 July 2020, a consignment of 26 drums – 25 x 44 gallon steel drums of BTD and 1 x 44 gallon blue plastic drum of hypophosphorous acid arrived in Melbourne by ship from China. The consignment was packed on six pallets – five pallets each containing four drums of 1,4 BTD and one pallet stacked with one drum of BTD and one plastic drum of hypophosphorous acid.

13You are not charged with, and I do not conclude that, you were involved in the importation of the chemicals.

14The pallets were shipped from Shanghai. The original freight forwarder, China Coast Freight, prepared documentation, negotiated freight charges, shipping, insurance and transportation.

15The receiving freight forwarder in Australia was ASEA360, which provided delivery documents, the import from Asia documents, freight collection and warehousing of the imported goods.

16As I understand it, no documentation from either the originating or the receiving freight forwarder was found in your possession, however there is evidence that you confirmed the delivery of the pallets to a self‑storage unit after speaking to a director of ASEA360.

17Prior to the importation, on 9 June 2020, your co‑accused Mr Jack Duncan (who was acquitted at trial) arranged for his stepfather to rent a storage unit 'large enough to fit a Holden Commodore'. Duncan arranged with his stepfather to use the storage unit prior to his stepfather storing the car in the unit.

18On its arrival in Australia, Australian Border Force officers detected the consignment of BTD and hypophosphorous acid. The chemicals were substituted with water and re-placed back on to the six pallets.

19Experts estimate that each drum of 1,4 BTD had a black-market value of $200,000 with an estimated total black-market value for the consignment of BTD of approximately $5 million.

20Experts estimate the black-market value of the drum of hypophosphorous acid was about $500,000.

21Your first documented involvement (albeit indirectly) was evidenced on 24 July 2020 when the originating freight forwarder emailed the receiving freight forwarder. In that email, your pseudonym Raphael De Monte together with a telephone number ending in 253 (which you now admit that you used) was nominated as the contact and delivery to the address of the storage unit to which I referred earlier.

22The telephone number ending in 253 used by you was falsely subscribed in the fictitious name of Mr Nguyen.

23On 24 July 2020, you spoke to a director of ASEA360, Ashley Agius. You enquired about the delivery date, and you repeated that you wished the delivery driver to call you beforehand. In her statement, Ms Agius told police that you stated that you would have three to four men to assist you.

24On 29 July 2020, you spoke to ASEA360 staff twice and you were advised that the delivery would be made the following day (30 July) between 2 – 5 pm.

25On 30 July 2020 at 2 pm, you again spoke to ASEA360 staff about the delivery.

26On 30 July you communicated with Jack Duncan by Wickr message about the delivery and confirmed that the co-accused Mr Kiya Smith (acquitted at trial) and his father were to be paid $100 each to remove the drums from the delivery truck by forklift.

27On the same date you spoke to the delivery truck driver (who was in reality a police covert operative). In that call you confirmed that you would have 'a couple of my boys there to forklift all the shit off'.

28In the same call you refer to a forklift being there (that is at the facility) and you state 'will grab that one'. I am satisfied that this is a reference to the forklift and not to simply a single drum of BTD. In other words, you intended to use the forklift at the storage facility site and not supply a forklift from elsewhere.

29You stated to the driver 'you just in a big truck are you?' You told the driver that your mate Dave (a false name for Duncan) was waiting for the delivery at the storage unit.

30The Wickr messages only record your communications sent to Duncan and not those you received from him. In the Wickr messages, you communicate to Duncan:

i.A number of texts about waiting for the truck to arrive;

ii.You ask 'how long u rekon he will take to unload';

iii.You state 'it's on there'; and

iv.'Should be on the one with only 2 on it.'

31It can be seen on CCTV evidence that Duncan opens different steel drums, used his phone torch to look inside the drum, and tasted the contents. I have not particularly relied on the CCTV footage, as you did not have that view when you communicated with Duncan. In the messages, you tell him on three occasions to 'taste it' or ask 'what's it taste like'.  In the CCTV, Duncan is heard to say 'water' and he communicates that back to you by 'Wickr'. You communicate 'bullshit' and text 'open another one'. You ask 'and its water?'; and variously text 'get out of there', 'not frozen at all', 'wtf', 'is there trackers or anything on it in them', 'is there a non-steel drum' and 'what's in that?'

32You were arrested a short time later when you were driving your Ute. Relevant to this aspect of the determination, inside the Ute was a receipt for 7 x 25 litre blue plastic drums, three ratchet ties, still in the packing and a trolley in the tray of the Ute. On the plea, Mr Norton stated that these items related to your intended possession and use of the hypophosphorous acid.

33In a search of your home a large number of items were found. Relevant to this determination, police found 74 kilograms of iodine.

34In a record of interview conducted with police, you denied using or knowledge of the mobile phone with a number ending in 253. You denied speaking to anyone that afternoon. You said that you did not know how the phone came to be in your Ute. Analysis of the phone found you had used it in the course of the communications that day.

35On the contested plea, Mr Norton submitted:

i.You admit that you were complicit in the movement of the drums;

ii.You did not physically take possession of the drums (i.e., you did not handle the drums) and your role was not to personally sell the BTD;

iii.That there is insufficient evidence to prove that you knew that the quantity of BTD was being moved and stored was 5.1 tonnes;

iv.The Crown must prove knowledge beyond reasonable doubt;

v.That you were to be paid for your role by taking possession of the drum of hypophosphorous acid;

vi.There is no evidence that you knew the relative values of the BTD to the hypophosphorous acid or that you knew the black market value of the hypophosphorous acid;

vii.That the comparative price difference is irrelevant to the issue of knowledge of the amount of BTD;

viii.You intended to use the hypophosphorous acid and iodine, together with another chemical, ephedrine, to manufacture methylamphetamines. Whilst I have regard to this fact, I do not intend to doubly punish you by impermissibly taking the intended manufacture into account; and

ix.You had glassware at your house, but the glassware was clean and unused.

36The Crown submits on the whole of the evidence that I can infer that you knew the full extent of the consignment and I may therefore be satisfied beyond reasonable doubt that you attempted to traffick 5.188 tonnes of BTD.

Analysis

37I conclude that there is no evidence that you knew about the rental of the storage unit as at 9 June 2020 but your details (that is the pseudonym and the telephone number) were communicated by China Coast Freight to ASEA360 in July 2020 and that you were operating under that pseudonym, and that you were aware of the storage unit details when you spoke to the freight forwarder on 24 July 2020.

38The defence submits, the Crown agrees, and I conclude, that this was a joint enterprise. You were not acting alone.  Your role involved others around you, and they likely held roles above and certainly below you. In the course of communications you refer to Duncan, who was tasked with opening the unit, supervising the unloading and storage of the drums and opening drums and tasting the contents. He also had a role in paying Smith and Smith's father. You refer to Smith and his father operating the forklift and you refer to BB, cougs and daffy. At least one of them refers to Smith.

39It is clear that Smith was below you, had a limited and likely unwitting role. It seems also that Duncan had a more limited role than you. In any event both were ultimately acquitted.

40There is no evidence of financial outlay by you or, as I have already remarked, direct involvement in the importation.

41As I have already remarked, the evidence supports that your role was to coordinate the movement of the consignment of chemicals from the freight forwarder to the storage unit.

42It is apparent from the evidence that you were aware:

i.That the chemicals were to be moved into the storage unit;

ii.The consignment was to be delivered by truck; and

iii.It required a forklift to remove the consignment from the truck.

43To do so, you:

i.Used a false name and a falsely subscribed telephone number;

ii.Knew or organised others to rent a storage unit;

iii.Knew or organised your friend's father to unload the goods by forklift; and

iv.Intended attending the site at the time of the unloading with another person.

44On the evidence I cannot conclude that you were one of the pinnacle members of the criminal enterprise, but you were to be well rewarded.

45You were to be paid with the 44 gallon drum of hypophosphorous acid. As I have stated already, I accept Mr Norton's submission that there is no evidence that you knew the black-market value of the chemical drum to be $500,000.

46Nevertheless, it defies reasonable logic that you did not know the approximate value of that chemical as an ingredient of your intended methylamphetamine cook. Furthermore, you were getting possession of 174 kilograms of hypophosphorous acid which along with your 74 kilograms of iodine provided you with two thirds of the reagents for what was to be a substantial cook of methylamphetamines. In other words, I am satisfied that you knew that you were actually and potentially to receive a high reward for your role.

47I do not accept that you believed that you were getting paid in this way for simply moving one drum of BTD.

48From:

i.Your knowledge that a storage unit had been rented into which the consignment would be stored;

ii.Your stated expectation to the driver that the consignment would come on a 'large truck';

iii.Your statement to Agius that the consignment would be met by 3 to 4 men;

iv.Your knowledge that Smith and his father were there to operate the forklift;

v.Your statement to the Covert Operative that a couple of men were there to 'forklift all the shit off';

vi.(A small matter, but) your use of false names and a false phone number;

vii.Your references to others involved in the transaction;

viii.Your reference to a pallet 'it's on the one with only 2' implies a knowledge of other pallets with more than two drums on them;

ix.Your urge to Duncan to 'taste another' implies knowledge of the presence of multiple drums of BTD (where the knowledge that it was BTD is confirmed by your comment 'it's not frozen');

x.Telling Duncan to look for trackers 'on them';

xi.Asking about a non-steel drum; together with

xii.Expectation of being paid with 174 kg of a valuable chemical agent

in my mind all militate towards the conclusion that you knew that you were complicit in coordinating the movement of a very large consignment of 1, 4 BTD.

49I am not satisfied on the evidence that you knew that it was precisely
5.188 tonnes but I am satisfied that you knew that there were several pallets containing more than two drums and that there was only one plastic (that is, non-steel) drum.

50I am also satisfied that you expected all of the steel drums to contain BTD, and the consignment was not simply comprised partly of drums containing BTD and others containing water. The surprise, the consternation and the lamentation after a few drums were opened and found to contain water makes it clear that you expected all of the steel drums to contain the chemical and that there were no masking drums. Moreover, I am satisfied that you believed that the water had been substituted by law enforcement agencies and not by the duplicitous conduct of the supplier in China. I conclude this from your query about trackers and your command to Duncan to get out of there.  You were parked outside the storage facility, and you drove off without attempting to take possession of the drum of hypophosphorous acid.  So, in the circumstances, I am satisfied that you knew that a very large quantity of BTD was being coordinated in your movement.

Background Circumstances – Other Charges

51On attending your home, police found and seized:

i.30.6 kilograms of Testosterone (Charge 3 Trafficking in a commercial quantity);

ii.12.58 kilograms of narcotic plants being cultivated in the adjacent unit owned by your family (Charge 5);

iii.173.2 grams of MDMA (Charge 6 trafficking);

iv.657 milligrams of LSD (Charge 7 trafficking);

v.4.2 kilograms of Nandrolone (Charge 8 trafficking);

vi.1.5 kilograms of Trenbolone (Charge 9 possession);

vii.507.5 grams of Oxymetholone (Charge 10 possession);

viii.637.4 grams of Stanozolol (Charge 11 possession);

ix.507.5 grams of Oxandrolone (Charge 12 possession);

x.428.5 grams of Mesterolone (Charge 13 possession);

xi.391.6 grams of Boldenone (Charge 14 possession);

xii.271 grams of Drostanolone (Charge 15 possession); and

xiii.73 grams of Methandienone (Charge 16 possession).

52Police also seized 79.4 kilograms of Iodine from the adjacent unit (that is Charge 4) and a collection of glass laboratory equipment from the garage floor. The glassware, as I say, was unused. However, your counsel concedes that when viewed in combination with the Iodine (a known precursor) and the hypophosphorous acid; as I have already stated, it is clear your intention was to manufacture Methylamphetamine. 

53In relation to Charge 5, as I have stated a total of 12.58 kilograms of cannabis was seized from the adjacent unit at 1/24 Blanche Street, Ardeer. This was discovered when police attended at the unit to make enquiries regarding your unit. They observed your friend Luke Jeka, whom you had hired to maintain the cannabis crop, attempting to flee the property.

54Upon searching the property police located a total of 42 cannabis plants and seedlings in various stages of maturity throughout the house. Your counsel submits that this was a 'ramshackle' operation, with the whole crop house being powered by an extension cord connected to Unit 2 and that Jeka was being paid by you in cannabis for his assistance in maintaining the crop.

55The crop was being grown by means of a sophisticated hydroponic set up of equipment.

56You were interviewed by police and generally denied involvement in the offending.

57You were remanded in custody on 30 July 2020 and you have now spent 1,302 days on remand by way of presentence detention excluding today.  It is necessary to outline the events which led to you serving such a lengthy presentence detention.

58The filing hearing occurred on 31 July 2020. The first committal mention was listed on 6 November 2020. There was then a period of around nine months between the first committal mention and the committal. Your first plea offer was made in September 2021 prior to committal on 16 September 2021. It included offers to plead guilty to charges relating to each of the substances subject of the present charge with knowledge of the amount being in issue, but this was rejected by the Crown.  The matter was then transferred to the County Court for trial.

59The Crown served the trial indictment in March 2022, preliminary hearings were heard and defence then filed an application for a judge alone trial on 21 June 2022. There was a six-month delay in the judge alone trial being ordered by the court on 1 December 2022. Following this, two further plea offers were made by you and rejected by the Crown in the first half of 2023. The third plea offer was made after the discovery and service of the Wickr messages. The Crown made a counteroffer and on 7 June 2023; the offer to resolve the matter was accepted on the current indictment which included a plea of guilty to Charge 1, with knowledge of the amount to be contested.

Objective Gravity and Moral Culpability 

Attempt to Traffick BTD - LCQ

60I turn now to a consideration of the objective gravity and moral culpability of your offending, turning first to the charge of attempt to traffick a large commercial quantity of the BTD. 

61The offence of attempting to traffick a large commercial quantity of a drug of dependence falls into the most serious bracket of offending in the criminal law – those which carry the maximum penalty of life imprisonment.

62The amount attempted to be trafficked is 259 times over the defined threshold large commercial quantity.

63The following are factors relevant to assessing the objective seriousness of your offending and your culpability:

i.The quantity of drugs involved in the attempt;

ii.Your knowledge or belief;

iii.(So far as it may be made), an assessment of your role in offending;

iv.Financial gain or motive;

v.The size and sophistication of the operation;

vi.The duration of the offending;

vii.Any assistance to authorities;

viii.Whether you have a prior criminal history; and

ix.Your prospects for rehabilitation.

64Even though I am not satisfied beyond reasonable doubt that you knew the precise quantity of BTD involved, I am satisfied that you knew you were to be involved in the movement of a large number of 44-gallon drums of the drug delivered on seven pallets. This shows that you were prepared to play a part in the movement of a huge amount of the drug. 

65Objectively speaking, the value of the consignment – estimated on the black market to be about $5m - makes it easy to conclude that all of those involved in the intended trafficking of the consignment were attracted by the prospect of making large sums of money. In my view the attempt to traffick in this instance can only be motivated by greed and attended by callousness. Those who sell such a drug showed no regard for the health and welfare of the users.

66I accept that there were others involved in the consignment above and below you.  I am further satisfied that the evidence shows your involvement after its importation to be in the movement/logistics of the consignment from the freight forwarder to the storage unit.

67The level of your reward was high.  As I have said, I was told the black-market value of the drum of hypophosphorous acid was about $500,000. You admitted that you were to receive this as your reward for your role in the operation.
Mr Norton submitted, as I have said, there is no evidence that you knew the black-market value of the chemical. Nevertheless, it was valuable in your hands as an agent in your intended manufacture of methylamphetamines.

68It would be naïve to think you did not have some real idea of the value of this chemical - for the fact that such a quantity was to be provided to you to assist your intentions; and for its monetary value.

69I do not intend to punish you for your intended manufacture of methylamphetamines. Your reward and motivation does however, provide a measure of your moral culpability - you were prepared to play a significant role in the movement of the drug so that you would be rewarded with another valuable chemical to further your intention to manufacture a different drug.

70In other words Mr de Palma, you were motivated entirely by greed - your ambition to make money. Your motivation smacks of the callousness I described a few moments ago.

71This was an operation of some size and some sophistication. Your lawyer pointed to your home as found by police, and described it as 'ramshackle'. Your actions however, as part of the overall scheme, were timed and coordinated; designed to hide the consignment until it was further moved and/or distributed into the market.

72Your role is charged as one day – 30 July 2020.  I will not punish you further. However, it is clear and I am able to take account of the fact that your preparation extended back before that day and your level of coordination was constant and considered.

73You have not assisted the authorities.

74I take into account that you have no prior convictions and nothing outstanding. I will say more about this in my analysis later in these remarks.  I shall also consider in some detail your prospects for rehabilitation later.

75It is accepted that your offending must be met by principles of deterrence, denunciation and a measure of protection of the community.

76I have considered the 2013 Court of Appeal decision of Maxwell. Mr Norton submitted that whilst BTD is apparently immediately distributable for use as a drug, it is less valuable and less profitable than other drugs of dependence. I accept this factor should be taken into account in determining the appropriate sentence.  Against that of course, is the quantity of drug brought in as to the profitability by its large quantity.

Attempt to Possess a Precursor Chemical

77I have already addressed your attempt to possess the hypophosphorous acid in detail. You were to receive the drug as a reward for your role in this offending; in turn you were to use that in the manufacture of methylamphetamines. Together with a consideration of the quantity of the drug – 174 kilograms – this contributes to the seriousness of this offence.

78Of course, in sentencing I must have regard to the relatively low maximum penalty prescribed for this offence.

79The same factors - that is, the circumstances of your possession, the quantity and the low maximum penalty apply to my assessment of Charge 4 - the possession of the precursor chemical iodine.

80In assessing the gravity of your offending and your moral culpability on these two charges, I take into account your frank admissions to the court – that is that you intended to manufacture methylamphetamines. Of course, this conclusion is complemented, if not made inevitable, by the vast amount of glassware found at your house. Nevertheless, it is a matter that you readily acknowledged.

81I must not overlook or underestimate the seriousness of other aspects of your offending, which might be swamped by the principal charge.

82You have pleaded guilty to trafficking in a commercial quantity of testosterone. The commercial quantity of that drug is 5 kg. You were found with 8,780mll which is 1.7 times the threshold commercial quantity.

83I accept that your possession of testosterone is inextricably linked to your body building obsession and lifestyle and that you had at least part of that quantity in your possession for your personal use. Nevertheless, the quantity you had in your possession can only lead to the conclusion that you possessed that amount for the purposes of trafficking at least part of that drug.

84If you were sentenced to a period of imprisonment on Charges 1 and 2, then for your conviction on the third charge, you are to be declared a serious drug offender and that must be noted in the records of the court.

85With the declaration, the protection of the community becomes a dominant sentencing objective. Moreover, the usual presumption of concurrency of sentences is displaced. Sentences of imprisonment imposed after that declaration are to be served cumulatively unless I order otherwise.

86There is no application for the imposition of a disproportionate sentence, and I will make no such order in this case.

87Next, in my analysis of the objective seriousness and moral culpability of your offending, you had set up a sophisticated hydroponic cannabis cultivation operation next door to your house, where police found 42 plants weighing just over 12 kilograms. There is no evidence that this operation was undertaken by anyone but you. I am satisfied that you were the principal of this operation. This stands separately to Charge 1. Again, I will into account the charge is for a single day and that you are not charged with trafficking in the drug.

88Your possession of 900 MDMA tablets and 60 tabs of LSD also stand completely apart from your body building and steroid use.  Given the quantity and the pleas of guilty, and the fact that you yourself were not a drug user, I can only conclude your possession was for the purpose of distribution; inevitably motivated by greed.

89Offences of trafficking in drugs of dependence will always be met by principles of deterrence, denunciation and protection of the community.

90It is agreed that your possession of various amounts of 'steroids' (if that is the appropriate term to use for Charges 9-16) is entirely linked to your body building pursuit and lifestyle. I accept that for all of those drugs, you had the drugs in your possession for personal use.  I was told that you stockpiled these substances. This must temper the penalties imposed for these offences.

91When I stand back, and look at the whole of your offending, I can only conclude that you were affected by a high degree of criminality for the array and quantity of drugs you accessed and possessed; all for commercial purposes.

92As yours was a poly drug operation, the objective gravity of your offending is high. Moreover, your moral culpability is high. It was submitted on the plea that your lifestyle, as shown in the photographs, was chaotic and disorganised. Essentially it was submitted that your steroid use affected your judgement and the rationality of your decision-making.  The character references refer to the change, or perhaps more accurately the reversion of your personality since you have been steroid free from angry and aggressive back to calm and normal.

93After reading the report of Mr Newton to which I refer later in these remarks, I am satisfied that there is no psychological or psychiatric evidence or reason to reduce your moral culpability.

94The seriousness of your offending must be met by substantial terms of imprisonment.

Personal Circumstances

95You are 32 years old, being born in July 1991.

96You lived in Hoppers Crossing until you were aged three, then you moved to Yarraville where you grew up with your parents and younger sister.

97You described to Mr Newton your early years as 'a good childhood' and had 'heaps of friends'. Notwithstanding this, you told Mr Newton that your parents' relationship was marked by regular bouts of intense verbal conflict and expressed the view that they 'stayed together for the kids'.

98Your father moved out of the family home for a period when you were 16. Your parents reconciled after about one year but ultimately separated permanently when you were in your mid-twenties.

99You remain on good terms with both your parents and your sister. You speak to them on a daily basis.

100You attended local primary and secondary schools and completed Year 12. You were an average student, you did not suffer from any learning difficulties and you describe a largely unremarkable educational history.

101After your formal schooling, you attended RMIT to begin a building and design course. You left the course after a semester and began an electrical pre‑apprenticeship program.

102You completed your electrical apprenticeship and worked as an electrician up until your remand; including running your own business. In custody you have been working in a trusted role as a peer educator.

103You have been with your current partner Jessica since 2018. You admitted that your drug use detrimentally impacted your relationship. Nevertheless, you told Mr Newton that Jessica is supportive, you 'talk every day and are still discussing your future together'.

104Your counsel made great efforts to emphasise the link between your steroid usage and your mental state at the time of your offending. It was submitted that at age 17, influenced by material you would watch on YouTube, you had resolved to use steroids to further your passion for bodybuilding and your burgeoning obsession with your own body image. Your counsel submitted that you made a conscious effort to refrain from commencing steroid use until you were older and did not engage in the use of other illicit drug;, nevertheless, by age 20 you had begun full-scale steroid usage. From this point it was submitted that your mental health began to deteriorate.

105I have received a number of character references from your family and friends. All speak of you as a loving, driven and committed man of character who continues to be involved in all their lives despite your time on remand. Your sister Brooke refers to you as 'one of the two dependable male figures in [her] children's lives' and your cousin Daniel speaks of your willingness to go out of your way to help others.

106Notably, all of your family members point to a noticeable change in your character and personality in the time prior to your offending; a shift which they attribute to your steroid addiction. Your partner Jessica in particular alludes to several occasions wherein your behaviour became 'challenging' and 'erratic'. This included bouts of paranoia, memory lapses and anger which both tested your relationship and ultimately resulted in your resignation from your job at Fire Safe ANZ.

107Since being on remand and abstaining from steroids however, all of your references opine that these symptoms have waned, that you have reverted to your normal self and having had time to think on your actions, you now appreciate the significance of your offending and state that you are genuinely remorseful.

108In custody, you have completed numerous courses including a steroid specific drug rehabilitation program; the programs with Professor Martinovic (which I will speak about) and your work as a peer support in the prison and then in the often difficult position as a prison representative; you also work as a food billet and work with the YMCA sports programs

Psychological material

109I received the psychological report of Patrick Newton dated 29 November 2023.

110You reported a lengthy history of extreme steroid abuse which had arisen out of your involvement with body building and weight training.  

111Mr Newton states that your substance abuse has been sufficiently severe to meet DSM-5 criteria for the diagnosis of a severe substance-abuse disorder in regard to anabolic steroids and benzodiazepines (alprazolam). He  notes your condition is now in remission since being on remand in a controlled environment.

112Mr Newton notes your limited history of mental health involvement, preferring to address your issues by increasing your recourse to steroids. You reported that whilst using steroids you experienced intense mood swings, periods of hyperarousal, increased aggression and agitation. During its peak you reported experiencing bouts of mental confusion, perceptual disturbance and paranoid ideation that approached psychotic proportions.

113Mr Newton concludes, assuming your self-reports are accurate, this strongly suggests the development of a substance-induced psychotic disorder with onset during intoxication. Mr Newton notes this diagnosis is provisional pending verification.

114Overall, Mr Newton concludes there is no nexus between these symptoms and your offending conduct. That your offending did not arise out of attempts to manage psychotic symptoms or as the result of any delusional thought process. More broadly Mr Newton states:

'There is no indication to suggest that at the time of his offending Mr De Palma was labouring under the effects of any diagnosable psychological condition or mental disorder that would have affected his judgement, reasoning, decision making or other thought process'.

115Mr Newton further opines:

‘Mr De Palma would not meet criteria for any mood disorder, anxiety‑related disorder or adjustment disorder at this time. There is, moreover, no indication to suggest that he was labouring under the effects of any mental disorder at the time of his offending conduct.'

116Mr Newton observes that your awareness of harm to others from your activities 'inspires a degree of regret and some remorse' but your insight into your own drug use 'remains at a formative stage where further development and focusing is required'. Mr Newton considers that you have a good theoretical understanding of relapse prevention planning but you remain strongly focused on body image and exercise and that your relapse prevention skills should clearly be a focus of future treatment. The risk of relapse will be particularly high in the period immediately following release (see paragraphs 44– 46 of
Mr Newton's report).

117I also received a letter of support from Professor Marietta Martinovic of RMIT dated 30 November 2023.

118I also received evidence from Professor Martinovic at the plea hearing. Professor Martinovic explained that you have been an integral and willing participant in two of the university-level programs she runs at Ravenhall. You received a High Distinction in the 'Inside Out Prison Exchange Program' and Professor Martinovic has extended an invitation for you to participate in a further community-based think tank given your level of engagement with the 'Change on the Inside' program. Through this program she believes that you will be a valuable addition to consultations with various stakeholders in the criminal justice sector and you be able to assist in the offering of innovative solutions to issues the system currently faces.

119This work speaks well of your real desire to put this matter behind you, and of your awareness and empathy for others. And in that respect, not only your work with Martinovic, but your work as a peer educator and as a prisoner representative.  Rather than let it crush you, it is apparent that you have used your time on remand in an entirely positive and constructive way.

Sentencing Submissions

120Mr Norton who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:

i.Plea of guilty and remorse;

ii.Prior good character;

iii.First time in custody;

iv.You spent your time on remand during COVID with multiple lockdowns, the longest period of isolation being 18 days, you had five months without a visitor, and two years where visitors had to wear protective equipment;

v.The programs with Professor Martinovic, your vocational and educational courses undertaken, your work on the sports programs, your work as a food billet and as a peer support and prison representative show that you have used your time in prison positively and constructively;

vi.Your prospects for rehabilitation should be assessed as very good; you have prosocial supports available to you and a capacity for employment; and finally

vii.Mr Norton submitted I must have regard to the principle of totality, that is given the extent and (indistinct words) of your offending I should not impose individual sentences that lead to a crushing total upon you.

121Mr Thomson who appeared for the Crown submitted that the only appropriate sentence open to the court is a significant head sentence and minimum non parole period.

122The Crown concedes:

i.The evidence of Professor Martinovic shows the significant efforts you have made at your rehabilitation whilst on remand;

ii.There was a considerable amount of delay in resolving the matter due to the Wickr messages only being downloaded from Jack Duncan's phone in May 23; and

iii.That you should be given the Worboyes discount, as it is known, because of the uncertainty of future whilst on remand.

Analysis

123I consider that all of the seven mitigating matters submitted on your behalf by Mr Norton and to which I have referred, and those of the Crown should operate to mitigate the overall sentence I impose.

124I consider that since your remand, you have experienced the entirety of the fear and the strategies used by prison authorities to meet the COVID pandemic.  It is a matter of real significance, in my view, that as a relatively young man with no prior convictions, and your only experience of prison, you have faced isolation for extended periods of time, many months where you had no contact with your family or it was limited to internet and telephone, and then many more months extending into years where visitors wore hazmat suits and you could not receive so much as a hug, or the touch of a hand, from a family member.

125Then there were the restrictions on undertaking vocational courses, restrictions on work, and restrictions around the movement of the prison and particularly in the early days, the fear of uncertainty of what the pandemic and the consequences of catching COVID actually meant.

126Coupled with this, during your period in custody were the delays within the justice system, and there was the uncertainty for years as to how and when this matter would be finalised.  This was exacerbated by the application for a judge alone trial, where there was a delay which was never quite explained, (and I blame no one for that), between an application in June and a resolution of that in November/December of 2022.

127I take full account of the fact that you did not just experience a part of COVID and the delays but, and perhaps uniquely in the prison system in Victoria, as a remand prisoner you have experienced the whole of the COVID period and all of the difficulties that go with that.  Coupled with the delay, of the justice system and COVID, was the delay in receiving the whole of the evidence which the Crown concedes is a matter I should recognise in mitigation, and which was a delay not of your making.

128In my view, you have very good prospects for your rehabilitation. I expect that with your skills, upon your release you will be able to return to the workforce, and I expect both as an intelligent young man, pragmatically and from the expressions of remorse and the insight you have developed, that you would not contemplate committing criminal offending of this type again.

129Mr Newton reports that you must continue to develop insight into steroid use and your own body image.  Your theoretical understanding of the dangers of steroid use must be matched by a real-world practical application and enforcement on your release from custody if you are to remain incident free.  Nevertheless, I still say that your prospects of rehabilitation are very good.

130Now of course in cases of this type, the mitigating factors can only play a relatively limited role in the formulation of the appropriate sentence in this case. The seriousness of your offending and the objective principles of sentencing must dominate the sentencing consideration.

Comparable Cases

131In determining the appropriate sentence on Charge 1, I was referred to a number of loosely comparable cases. I use the term 'comparable' with caution as no case should unduly influence the sentence I must impose, and I must then take into account the circumstances of this case and the matters personal to you.

132The category of 'large commercial quantity' is determined by the quantity to be trafficked. Whilst the category label 'large commercial quantity' has been the subject of many cases, there are very few, almost none, concerning large commercial quantities of BTD, as the category of large commercial quantity was only introduced for this drug in May 2019. As a consequence, although the case of Moustafa[1] involved the trafficking over eight tonnes of BTD, and Obian[2] involved trafficking over 17 tonnes of BTD, both cases were charged as trafficking in a commercial quantity and not as a large commercial quantity. The case of Richardson[3] involved trafficking of 100kg of BTD and is a large commercial quantity case.

[1]DPP v Moustafa [2018] VSCA 331.

[2]DPP v Obian (2023) VSCA 18.

[3]DPP v Richardson [2023] VSCA 241.

133Obian was sentenced after trial to a total effective sentence of 17 years, 10 months with 12 years, 10 months to serve, as I say, for trafficking over 17,000 kilograms of BTD. The Court of Appeal dismissed Obian’s appeal against sentence. Specifically, he was sentenced to 15 years and 10 months on Charge 2 – trafficking 16,000kg. He was sentenced to eight years imprisonment on Charge 3, trafficking 4,283 kilos. I will check those figures in my revised sentence.

134In his Honour’s sentencing remarks on appeal, Justice Macaulay did not interfere with the sentence on Charge 3 but observed that he would have imposed a sentence of 'four or five years' on that charge.

135Obian was only 22 years old at the time of his offending but was assessed as a knowing, willing, and sole instigator in the importation, storage and intended distribution of the drug. He came from a stable family background. The drug was described by the prosecution as a 'dangerous substitute for GHB'.

136Moustafa pleaded guilty to trafficking 8,000 kilos of BTD. He was originally sentenced on that charge to four years' imprisonment which was increased on appeal to 8 years.

137Moustafa was 27 years of age, pleaded guilty and provided considerable assistance to police. He was found to have played a significant yet limited role – he was not the principal nor the distributor. Moustafa had relevant prior convictions.

138I was referred to Gayed,[4] another case of trafficking in a commercial quantity of 279kg of BTD. Gayed was sentenced as the sole principal in the trafficking of the drug. In that case, the Court of Appeal considered that the sentencing judge understood and correctly applied the principles stated in the 2017 case of Gregory,[5] when the sentence was imposed on Gayed.

[4]Gayed v R (2021) VSCA 141.

[5]Gregory (a pseudonym) v R (2017) VSCA 151.

139Unlike Gregory or Gayed, you were not in overall charge (i.e. the principal or pinnacle) of the operation, and there is no evidence that you were involved in the operation for a substantial period of time. Also, you have no prior convictions.

140Richardson was sentenced to 4 years' imprisonment for attempting to traffic a large commercial quantity of BTD, that is 100kg.  The Crown appealed against the submitted manifest inadequacy of that sentence.

141Richardson had served a previous significant period of imprisonment for trafficking in a commercial quantity of drugs. In the meantime however, he had suffered an ABI as a result of a stroke.

142The Court of Appeal dismissed the appeal. The Court concluded that the sentencing judge did not err in imposing a shorter sentence than if the charge stood on its own; in order to give effect to the principle of totality. Moreover, the Court observed that leniency could be extended to an offender even though the reason for leniency could not be readily identified.

143Turning away from the comparable cases and before I sentence you, I say that the principle of totality is an important consideration in the formulation of the sentences I impose, and in the determination of the overall total effective sentence.

144I have also decided that a longer than usual parole period is warranted to take into account the factors personal to you, and the extraordinary, if not unique experience of your remand which I have just outlined.

145Before I turn to the sentencing orders, I note that during the course of the plea Mr Norton also referred me to Childs v State of Western Australia[6] where the Western Australia Supreme Court of Appeal allowed an appeal against the severity of the sentence imposed on selling steroids. The appellant was resentenced to 8 years and 6 months, after a finding that the description that although the quantity of prohibited drugs involved was large, this should be qualified by the fact that the drugs in question were anabolic steroids. Mr Norton ultimately submitted that this case is not comparable as the earlier case refers to trafficking and it was accepted that in this case, that is your case, the steroids were for personal use. I accept that submission.

[6]Childs v State of Western Australia [2023] WASCA 145.

Orders

146Now Mr De Palma, I make the following orders:

147I will first announce the sentences of imprisonment, then I will announce the periods of cumulation, then I will announce the total effective sentence and the non-parole period:

Charge No.	Offence	Quantity	Maximum Penalty	Sentence	Cumulation
1	Attempt to Traffick in a Large Commercial Quantity of 1,4-Butanediol pursuant to X	5,188 kilograms –	Life imprisonment	9 years, 6 months	Base
2	Attempt   to Possess a Precursor Chemical,  Hypophosphorous Acid	174 kilograms	5 years imprisonment	2 years, 3 months	1 year
3	Trafficking in a commercial quantity of Testosterone	30.6 kilograms	25 years imprisonment	Serious Drug Offender 3 years	Declare a serious drug offender 1 year
4	Possession of a Precursor Chemical, Iodine	79.4 kilograms	5 years imprisonment	20 months	6 months
5	Cultivation of Narcotic Plants	12.58 kilograms	15 years imprisonment	16 months	4 months
6	Trafficking in a drug of dependence, MDMA	173.2 grams	15 years imprisonment	7 years	3 Months
7	Trafficking in a drug of dependence, Lystergic Acid Diethylamide (LSD)	657 milligrams	15 years imprisonment	3 months	1 month
8	Trafficking in a drug of dependence, Nandrolone	4.2 kilograms	15 years imprisonment	15 months	4 months
9	Possession of a drug of dependence, Trenbolone	1.5 kilograms	1 year imprisonment or 30 penalty units or both.	3 months	Concurrent No cumulation for personal possession
10	Possession of a drug of dependence, Oxymetholone	507.5 grams	1 year imprisonment or 30 penalty units or both.	3 months	Concurrent No cumulation for personal possession
11	Possession of a drug of dependence, Stanozolol	637.4 grams	1 year imprisonment or 30 penalty units or both.	3 months	Concurrent No cumulation for personal possession
12	Possession of a drug of dependence, Oxandrolone	507.5 grams	1 year imprisonment or 30 penalty units or both.	3 months	Concurrent No cumulation for personal possession
13	Possession of a drug of dependence, Mesterolone	428.5 grams	1 year imprisonment or 30 penalty units or both.	3 months	Concurrent No cumulation for personal possession
14	Possession of a drug of dependence, Boldenone	391.6 grams	1 year imprisonment or 30 penalty units or both.	3 months	Concurrent No cumulation for personal possession
15	Possession of a drug of dependence, Drostanolone	271 grams	1 year imprisonment or 30 penalty units or both.	3 months	Concurrent No cumulation for personal possession
16	Possession of a drug of dependence, Methandienone	73 grams	1 year imprisonment or 30 penalty units or both.	3 months	Concurrent No cumulation for personal possession

148It is my intention, if my maths is correct, that the total effective sentence be a sentence of 13 years.  I order you serve a non-parole period of 7 years and 3 months before you are eligible for parole.

149I make the observation that notwithstanding the presumption of cumulation after Charge 3, I have decided that Charges 9-16 should be served concurrently because they arise out of personal use and your body building obsession.

150I reckon a period of 1,302 days pre-sentence detention excluding today be reckoned as already served.

151The 6AAA declaration is but for the plea of guilty I would have imposed a sentence of 18 years with 12 years to serve on the whole of the offending.

152I will make the orders for forfeiture and disposal in chambers.

153Mr Thompson, is the sentence clear to you?

154MR THOMSON:  Yes, it's clear Your Honour, I haven't done the arithmetic, but I think the orders for cumulation set out what Your Honour has sought to achieve.

155HIS HONOUR:  All right.  Mr Norton, is there any matter you want to raise?

156MR NORTON:  No, Your Honour.  I have done the arithmetic and it adds up as Your Honour has intended.

157HIS HONOUR:  Thank you, Mr Norton.  Thank you to both counsel for your considerable assistance during the plea.  Mr Norton, do you want the opportunity to speak to Mr De Palma over the video link, or will you make some other arrangements?

158MR NORTON:  We have an appointment for 1.30, Your Honour, so we'll speak with him then.

159HIS HONOUR:  Very good, all right.  Thank you, if there is nothing else from either counsel I will adjourn the court and given the length of the reasons and the issues that need to be canvased with your client, what I can offer Mr Norton, is to make the unrevised remarks, those that I have just read, available to you for private study.  They are not to be used, they are not for ‑ ‑ ‑

160MR NORTON:  I understand.

161HIS HONOUR:  ‑ ‑ ‑ if there is other steps, for that I will provide revised remarks as soon as I can, but given the significance of the issues covered, I am more than happy to have them emailed.

162MR NORTON:  I am most grateful.  Thanks very much.

163HIS HONOUR:  And of course to you too, Mr Thomson.

164MR THOMSON:  Thank you, Your Honour.

165HIS HONOUR:  We will adjourn now.

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