Director of Public Prosecutions v Duong-Cottonaro
[2023] VCC 42
•23 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-21-01227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL DUONG-COTTONARO |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2022, 12 December 2022 and 23 January 2023 | |
DATE OF SENTENCE: | 23 January 2023 | |
CASE MAY BE CITED AS: | DPP v Duong-Cottonaro | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 42 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Trafficking methamphetamine, handle stolen goods, trafficking alprazolam, deal with proceeds of crime, very difficult childhood, relevant and recent prior convictions, deferral of sentence on CISP, breach of bail on CISP.
Legislation Cited: Crimes Act1958, Drugs Poisons and Controlled Substances Act 1981, Sentencing Act1991.
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v McKee [2003] VSCA 16; R v Berisha [199] VSCA 112; R v Starr [2002] VSCA 180; R v James [2003] VSCA 13; Lieu v The Queen (2016) 263 A Crim R 173; Worboyes v The Queen [2021] VSCA 169; DPP v Veltmeyer [2018] VCC 1594; DPP v Scott [2017] VCC 401; DPP v Bambridge [2016] VCC 653; DPP v Fortunato [2016] VCC 537; DPP v Pham [2017] VCC 446; DPP v Reith [2016] VCC 1552; DPP v Vu [2016] VCC 1695 and Azzopardi v The Queen (2011) 35 VR 43.
Sentence: Imprisonment for 2 years with NPP of 12 months. 61 days PSD.
s.6AAA – Imprisonment for 3 years 9 months with NPP of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Mr C. Terry (31 May 2022) Ms T. Jansen (12 December 2022 and 23 January 2023) | Fayman Lawyers Slink and Keating |
HIS HONOUR:
INTRODUCTION
1Daniel Duong-Cottonaro you have pleaded guilty to an indictment containing the following charges:
(i)Handle Stolen Goods on 28 March 2020 (maximum penalty 15 years).
(ii)Trafficking Methamphetamine, 28 March 2020 (maximum penalty 15 years).
(iii)Negligently dealing with the proceedings of crime namely $4685, 28 March 2020 (maximum penalty five years).
(iv)Trafficking Alprazolam on 28 March 2020 (maximum penalty 15 years).
2Your Counsel (both Mr Terry and later Ms Jansen) relied on a constellation of matters in support of the proposition that a CCO was within range in your case, those matters including;
(a) your plea of guilty;
(b) the purported lower level of gravity of this offending;
(c) your personal history in so far as it explains your descent into addiction which in part explains this offending delay reform since offending; and
(d) reference to comparable cases and statistics.
3By contrast the Crown assert that because of the sheer gravity of this offending, and your relevant recent prior criminal history, the only disposition available to me is one that involves imprisonment with a non-parole period, and that is still said whilst;
(a) acknowledging the value of your plea;
(b) delay and lapse of time since offending;
(c) current custodial hardship experienced by prisoners; and
(d) at some degree, your compliance with bail.
4I have concluded that I will impose a head sentence and non-parole period. That head sentence will be two years. The non-parole period will be 12 months. My reasons for doing so are as follows.
Background
5You were born in November 1994. You were aged 25 at the time of offending. You are still now only 28.
6At about 4 am on 28 March 2020, police attended the basement car park in an apartment complex at Abbott Street in Sandringham. Inside the carpark police observed a motorcycle with number plates ending in UB attached, and parked near the entry doors to the stair well accessing the apartments. That motorbike had been seen driving erratically nearby earlier that morning.
7The registration plate was reported as being stolen along with the motorcycle it belonged to from Ringwood East on 6 January 2019, belonging to Mr Sherwin.
8The motorcycle, a red and black Honda CBR900 was recovered by police in Hampton Park the following day without the registration plate attached. That plate was valued at $30.00.
9At about 12.00 pm the same day, Detective Senior Constable Andrew Howell and members of the Caulfield Divisional Response Unit (the DRU) attended the underground car park and believed the motorcycle was stolen, arranged for it to be towed for evidence.
10At 1.10 pm, you exited the apartment complex in company with Brittany Armstrong Lappin. You asked Howell 'What are you doing with my bike?'.[1]
[1]Exhibit A: Summary of Prosecution Opening for Plea dated 27 May 2022.
11You were requested by Howell to nominate the rider of the bike at the time, to which you refused, claiming it was a communal bike and you were not riding it. You were then arrested by police. As I said, the numberplate on that bike was stolen and you knew or believed that to be so. That constitutes:
Charge 1 – Handling stolen goods.
12You were searched and police located a red Oppo mobile phone.
13Armstrong Lappin stated she lived in Unit 10 of the apartment complex but denied knowing or being associated with you. Police located an access fob and a set of keys for Unit 10 of that complex.
14At 4.48 pm the same day, a search warrant was executed at the same unit by members of the Caulfield Divisional Response Unit whereupon the following was located:
(a) On the couch in the lounge room:
A black and white Harley Davidson belt bag belonging to you containing:
(i)$4,685 in cash in the front pocket;
(ii)A resealable bag within another resealable bag containing approximately 200 grams of white crystal substance believed to be methamphetamine.
(b) On the kitchen bench:
(i)A black Apple mobile phone believed to belong to Armstrong Lappin;
(ii)A Samsung mobile phone with a clear case.
(c) A blue and grey "Under Armor" backpack believed to belong to you which contained:
(i)An intervention order in your name; and
(ii)Two white containers labelled Kalma 2 mg, each containing approx. fifty white tablets believed to be the prescription medication known as Alprazolam.
(d) There was also a blue zip up pencil case containing:
(i)a small resealable bag with two white tablets and remnants stamped 'Xanax';
(ii)A resealable bag containing four smaller resealable bags, each containing white crystal believed to be methylamphetamine;
(iii)Two white containers labelled Kalma 2 mg, each containing approximately 50 white tablets believed to be Alprazolam; and
(iv)another resealable bag containing white crystal believed to be methamphetamine.
15It is the possession of the above that constitutes:
Charge 2 - Trafficking methamphetamine.
Charge 3 - Negligently dealt with proceeds of crime.
Charge 4 - Trafficking Alprazolam.
Phone analysis
16On 17 April 2020 police downloaded the contents of the red Oppo mobile phone located in your possession. They observed conversations and phone calls between you and Armstrong Lappin including messages dated late of the evening 27 March 2020 and in the early hours of 28 March 2020 about offering product for sale and pricing, the quality of the offering as well as a request for her to source a 'quarter key'[2] of the product, with the latter agreeing to make enquiries.
[2]Ibid.
17Police believe the 'quarter key' referenced later to a quarter kilogram (that is, 250 grams), a similar amount of the white crystal located in the plastic bags seized during the execution of the warrant. I also have that view, especially when one looks at the messages below and the amount later found.
Contested aspect of the plea
18When this matter resolved, there remained some dispute between the parties in relation to the question of whether the methamphetamine subject of Charge 2 was a substance you had obtained from co-accused Brittany Armstrong-Lappin.
19Your position is that you obtained the methamphetamine from her. It is submitted that this is borne out by the text message exchange which preceded your attendance on Armstrong-Lappin’s unit on 27 March, as follows:[3]
[3]Exhibit 1: Outline of Submissions dated 27 May 2022.
Armstrong-Lappin: 'Hey what are you doing them for?'
Duong-Cottonaro: '4… But for u 35'
Armstrong-Lappin: 'True. I just got 2 for 6'
Duong-Cottonaro: 'That’s good how is it but'
'That’s good'
'U home her'
Armstrong-Lappin: 'Yeah its good ill show ya'
'Nah still in Seaford'
Duong-Cottonaro: 'Do they have a quarter key'
Armstrong-Lappin: 'I'll suss it'
20It was submitted by your counsel that two inferences can be drawn from that exchange, in combination with evidence discovered upon the execution of search warrant:
(a) The first is that you are offering something for sale to Armstrong-Lappin, that you refer to in the plural. This offer for sale is said to be the Alprazolam tablets; and
(b) The second inference that is said to be open is that your enquiry regarding a ’quarter key’ related to the methamphetamine located in your bag. It is submitted that the approximately 200 g of methylamphetamine found in your bag was the ‘quarter key’ that Armstrong-Lappin had sourced for you.
21It was submitted that this factual matter, of itself, was a relatively neutral one. That is, it was not aggravating nor mitigating that you obtained the methamphetamine from Ms Armstrong-Lappin. The fact is, Mr Duong-Cottonaro, is that you possessed it for the purposes of sale and you are pleading guilty to trafficking on that basis. As such, it is submitted that it is not really a matter that is genuinely ‘contested’. That is to say the source of the drugs is said to be irrelevant, as you counsel later asserts parity has a role to play in this sentencing exercise. I will deal with this in due course.
Drug analysis
22On the 23 April 2020, police photographed and separated the outer clear plastic resealable bags from the inner resealable bag which contained the white crystal substance believed to be methamphetamine. They were submitted for forensic examination, fingerprints and DNA testing.
23On 10 August 2020, drug analysis was conducted of the white crystals located in:
(a) first, the large plastic bag found in the black and white Harley Davidson belt bag and secondly;
(b) the five smaller bags of white crystal in the pencil case.
24On 29 October 2020 a Certificate of Analysis established that the white crystals in the bag located in the belt bag was methamphetamine, weighing 205.8 grams, with a purity of 64%.
25Further analysis of the smaller bags containing white crystal substance determined that:
(a) three of the bags contained 5.4 grams of methamphetamine at 69% purity;
(b) one other bag contained 1.4 grams of methamphetamine of 83% purity; and
(c) the final bag contained 2.6 grams of methamphetamine at 87% purity.
DNA analysis
26On the 10 September 2022, DNA analysis of exhibits which established that in relation to DNA samples located inside the outer empty resealable bag (which contained the bag with 205 grams of methamphetamine in it) was 100 billion times more likely to be yours than not.
Interview, remand, charge and history
27You were arrested, interviewed and remanded in custody on this date. You made no comment when interviewed.
28You were initially charged with a large number of serious offences, namely:
(a) theft (that is, the motorcycle I referred to above);
(b) conduct endangering persons;
(c) handling stolen goods;
(d) trafficking in a commercial quantity of methamphetamine;
(e) trafficking in drug of dependence namely methamphetamine;
(f) possess methamphetamine;
(g) trafficking in Alprazolam;
(h) possession of the drug of dependence namely Alprazolam; and
(i) negligently dealing with proceeds of crime.
29You were bailed after two days in custody on 29 March 2020 on conditions that you reside at a static address, report by telephone twice a week, abide by a curfew, not to drive a motor vehicle and not to use drugs of dependence. You abided by those conditions until around September 2022.
30After a contested committal on 9 June 2021, where the informant was only cross examined, you were committed to this court for trial.
31On 8 September 2021 a defence response filed on your behalf as part of the pre-trial process noted that while all charges were in dispute, the primary issue at trial was said to be whether you trafficked in a commercial quantity of methamphetamine. You, at that stage, denied possessing any drugs of dependence, let alone trafficking in them.
32You then mounted an attack by way of pre-trial argument on the investigative conduct of police, alleging amongst other things that they acted unlawfully and improperly in searching Ms Armstrong-Lappin’s apartment.
33The matter was booked in for s 198B Criminal Procedure Act hearing which were first listed on 15 November 2021 before me, before being adjourned to 25 January 2022 and later 28 January 2022 for cross-examination of a number of police witnesses.
34Finally, after those hearings took place, discussions between the parties saw the matter resolve, and you were arraigned on the present plea indictment on 11 February 2022. The plea was listed before me on 31 May 2022, some two years after you offended. Finally, then, you appeared to admit that the large amount of methamphetamine was yours and it was yours for the purposes of sale.
35Though references tendered on your behalf[4] speak of remorse, your counsel sensibly did not press that issue, or rely on it before me.
[4]Exhibits 4: Character reference of Lisa-Tin Temel dated 28 May 2022; Exhibit 5: Character reference of Natasha Kovacevic dated 23 March 2022; Exhibit 6: Character reference of Stacey Vivas dated 23 May 2022; Exhibit 7: Character reference of Tammy Bui (undated).
36How it is that you came to offend in this way was explained well by your counsel both in their written and oral submissions.
37The offending it is said has its roots in your unfortunate exposure to and dependence on illicit drugs from a very young age. You are still relatively young. I will turn to matters personal to you in greater detail now in order to properly contextualise your offending.
MATTERS PERSONAL TO THE ACCUSED
Introductory remarks
38Your personal circumstances are set out in the psychological report of Mr Newton, dated 24 May 2022.[5]
[5]Exhibit 2: Report of Patrick Newton dated 24 May 2022.
39Though there is no reliance placed on the principles in Verdins, it is clear, that self-esteem and identity issues that were faced by you as a teenager, contributed to drug addiction that lies at the very heart of the current offending.
40To that extent, your personal circumstances provide important contextual background to the offending. Your resort to drug use, ultimately leading to drug addiction, was a response to problems in your home life, problems with self-esteem and issues with belonging in society.
Personal history
41You are the second of two children born to your parents’ union. Your mother is of Italian-Australian heritage and your father is of Vietnamese heritage. They do not share fluency in any common language – which was a common source of considerable difficulty for the whole family: hampering communication and resulting in multiple misunderstandings and conflict.
42You grew up in Springvale. Your childhood was troubled. Your father was a heavy drinker who was at times violent. He also gambled heavily and the family was often in strained financial circumstances as a result. He was a harsh unpredictable disciplinarian leaving to a not infrequent state of anxiety over what he might do next.
43Your parents separated and divorced when you were about 10. Your mother re-partnered soon after to a man from America. She initially spent considerable time in the US while their courtship developed, leaving you to your own devices. When your stepfather became part of your life, he too was a rigid and authoritarian disciplinarian.
44As part of his efforts to enforce his will on his new family, he would lock you out of home if you were not home by a set time. From this you became accustomed to 'sleeping on the streets' from your early teens, where you met other disaffected youth who seeded your drug use and behavioural problems.
45You experienced perennial problems with self- esteem as a result of the disruption to your early attachments. These have persisted into your adulthood.
46You have enjoyed reasonably good physical health. You were diagnosed with attention deficit/hyperactivity disorder (ADHD) when aged about eight. You were treated with Ritalin, but experienced noteworthy sedation and so discontinued the treatment.
47Thankfully, you remain on good terms with your family.
Educational & occupational adjustment
48You attended a local primary school, and whilst apparently settled when taking Ritalin, could be disruptive when not. You were a mediocre student.
49You experienced more significant and pervasive academic, behavioural, social and disciplinary problems in secondary school. You were asked to leave school in the middle of Year 9. Your problems did not abate in the next school. You attended one week of Year 10 before leaving altogether.
50You have attempted a Certificate II in automotive engineering at a community college but did not finish. Your work has been confined to labouring and other unskilled positions. It has been, to put it mildly, adversely affected by your drug problem and unstable mental health.
Relationships
51You have been in three relationships since coming to adulthood. Your current relationship is with Stacey Vivas. She is employed as a Residential House Supervisor at the Victorian Child Care Agency and holds a Diploma in Counselling, Diploma of Community Service and Certificate IV in Child, Youth and Family Crisis Intervention.
52As I have said, you have been together since July 21 and lived together. Stacey does not use drugs. You have a shared strong bond. I have read her references [6] and I am well aware that she has attended every one of your hearings. Whatever prospects you have for reform are in no short part due to her presence in your life.
[6]Exhibit 6: Character reference of Stacey Vivas dated 23 May 2022; Exhibit 17: Further reference of Stacey Vivas dated 22 January 2023.
Mental health and cognition
53There is nothing wrong with your cognition or intellectual capacity.
54Your report to Mr Newton, significant emotional upheaval as a result of the difficulties in family. You describe experiences of fear and distress in response to the violence of your father and experiences of frustration, sadness and inadequacy in response to your stepfather’s treatment. You also experienced prominent social problems from a young age on account of being of mixed ethnic heritage, ostracism from peers, and problems associated with ADHD and the learning difficulties which resulted.
55Though you had been prescribed Ritalin for ADHD, you received no counselling as a very young person to address other issues. Similarly, while you have experienced significant distress over various interpersonal issues during adulthood, you have not participated in any formal mental-health care. You described barriers that were culturally based but also resource based that prevented you from accessing mental health services on your own. I note you have been given counselling opportunities on CCOs in the past, as well as a drug treatment order. That is one of the reasons I placed you on CISP bail.
56It was in the context of the above distress that you used illicit drugs (in part) as a means of addressing psychological problems. The short-term relief drugs offered did so at a considerable cost.
57You exhibit heightened anxiety (that is not extreme and is reactive in nature) to Mr Newton upon assessment. You were concerned time in custody would reverse your recent progress and place your relationship under threat. Such issues pre-occupy you and make it difficult for you to sustain concentration.
58Mr Newton later notes, in his typically perceptive way, that underneath such issues, a discernible tendency toward anxiety in social situations is also evident. This reflects issues of diffuse social identity and broader problems with self-esteem. He opines that you would likely benefit from some supportive counselling with a culturally-sensitive mental-health professional. Such counselling would not only serve the humane purpose of relieving your suffering, but also assist in reducing the risk of future relapse to drug use.
Substance use
59Speaking of which, you have a lengthy history of problematic drug use. This commenced when aged 16 when binge drinking in the company of disaffected youths you had met on the streets. This escalated to Ice and heroin by the time you were 18, the latter which you found calmed you and alleviated symptoms of anxiety. You became dependent on Ice psychologically and physiologically.
60Unsurprisingly, the more you became involved in drug use, the more immersed in the drug-use and criminal sub-cultures you became. In turn, this motivated a range of criminal behaviours: some of which were motivated by the need to support your addiction, while others reflect the general breakdown of your behavioural control and a broader alienation from mainstream society.
61Diagnostically, your use of illicit stimulants was sufficient to meet the DSM-5 criteria for a substance-use disorder with regard to methamphetamine and heroin. While you reported your abstinence was positive, it occurred too recently to warrant specifying that condition as being ‘in remission’. That cannot be said at all, I expect now, given your recent relapse.
Rehabilitation
62Your only experience of rehabilitation has been court mandated. You did not apply yourself to your own reform though and had not benefited from it.
63At the time of the plea in May 2022, you were still not participating in any rehabilitation or counselling, though you appeared committed to abstinence. Mr Newton notes you were sceptical about the benefits of same and instead devoted you endeavours to sporting activities and physical fitness as a way to stay well and sober. This limited insight into what is required for you to reform placed you at risk of relapse and the almost inevitable prospect of offending. It was clear that you required more help. This was another reason I placed you on CISP bail.
Forensic history
64By way of criminal history, your full criminal history extends to 32 pages, dating back to your first Children's Court appearance in 2013. You admit a number of drug-related, driving, violence, family violence and acquisitive offending, as well as reckless conduct, assaulting emergency service workers and various other offences.
65You have a number of specific driving offences in your prior history, including driving unregistered, forging number pates, driving while disqualified and reckless conduct endangering serious injury.
66Mr Terry conceded you have a relevant criminal history, which has involved previous breaches of court orders. It was asserted though, that much of this history occurred when you were a teenager. I am afraid that is not borne out by the record itself. A most substantial body of offending occurs in 2014 and following, that is to say, from the time you were 20 years of age until the present date.
67You have been detained in Youth Justice Centres in 2014. You were sentenced to prison in 2016 for a number of charges that were dealt with by way of Drug Court.
68You have received a full range of dispositions including several which have included treatment conditions as well as a drug-treatment order. Despite those opportunities given to you, you have breached several of these dispositions and have failed to answer bail on a number of occasions.
69You have had no less than seven previous community corrections order. You completed two. It is somewhat encouraging that the two you did complete were recent.
70But having said that, this present offending occurs while you were subject of a CCO imposed on 2 September 2019.
71Though you are obviously not to be punished again for those prior offences, it suggests that prison or detention has not sufficiently deterred you to cease offending and carefully structured, court mandated treatment built into sentences have also failed.
THE OFFENDING
Background
72I will turn to the offending. Emphasis was put on the fact that you were already heavily addicted to drugs, primarily methamphetamine and heroin, at the time of the offending. Your use commenced in your teenage years, as I said and as a result of low self-esteem issues and social anxiety.
73As noted earlier, your home life was sufficiently unstable to lead to periods of living on the street as early as age 16. In this context, you met other people who were in similar circumstances and introduced you to illicit drugs.
74The progression from being exposed to drug use and addiction in early life when you had no realistic prospect of truly understanding the harm they would do to you is a sadly familiar path known to the law. [7] It sometimes leads to trafficking in drugs in part to support an existing, expensive habit.
[7]R v McKee and Brooks [2003] VSCA 16.
75You gave a brief account of your offending to Mr Newton. By way of background, you told Mr Newton that this offending had occurred at a time when your drug use was out of control. You added that it had either occurred when you were under the influences of drugs or had been committed in furtherance of your attempts to support your drug habit.
76When asked for a response to your offending, you were said to have written:
I feel like I’m [I’ve] lost a lot of time Living in [an] unproductive life and I need to stay out of trouble and on the right path if I want a good future.[8]
[8]Exhibit 2: Report of Patrick Newton dated 24 May 2022.
Gravity and culpability
77By way of gravity and culpability, here it is put that you engaged in mid-level trafficking primarily in order to sustain your own drug habit. It was submitted that this matter is far removed from trafficking activity designed to generate gratuitous profit or to fund a lavish lifestyle. It occurs on a single day. Further it is said that this matter could have been dealt with summarily. These matters are called on in aid to place your offending at the lower end of the spectrum of trafficking offences.
78I am not sure I can accurately describe your activity as ‘mid-level’. You actively sought to obtain 250 grams of methamphetamine. You in fact obtained more than 200 grams. This is 70 times the trafficable quantity and just short of a commercial quantity of that substance. At a street value of $350 per gram, this alone would yield more than $72,000.
79This alone tells against your offending being mid-level ‘subsistence’ trafficking. One can reasonably infer you were expecting to receive a not insignificant amount of money from the sale of so much methamphetamine.
80You also trafficked 200 times the trafficable quantity of Xanax. At a street level price of $10 per tablet, this alone was worth $2000.
81I find your culpability to be quite high, Mr Duong-Cottonaro, (but I will reduce it in a modest way, because of the application of Bugmy v The Queen[9] that I am about to come to in a moment).
[9](2013) 249 CLR 571 (‘Bugmy’).
82You knew exactly what you wanted to source and did so. You wanted more of that substance. than you actually got. The amount is substantial. Your overall culpability is reduced modestly on the basis that you yourself were a user of amphetamine and came to be so at such a young age when you were not mature enough to see the path it would take you down.
83But make no mistake, trafficking in drugs is a pernicious thing. So much societal harm is done through the distribution of drugs by people like you. The Courts are full of those unfortunate people who offend on drugs. Ice is an especially evil substance. The amount you were prepared to sell was significant. That it did not make it onto the streets is fortunate.
84The Crown rightly points to the following matters when assessing the nature and gravity of your criminality, with which I agree.
(a) Trafficking in a drug of dependence and negligently possessing proceeds of crime are regarded by Parliament as serious offences, as reflected in the fixing of a maximum penalty of 15 years and five years respectively.
(b) The quantity of methamphetamine was substantial at 220 grams mixed comprising crystals in the bag located in the belt bag weighing 205 grams with a purity of 64%, three bags containing 5.4 grams of meth at 69% purity, another bag containing 1.4 grams of meth at 83% purity and a final bag containing 2.6 grams of methamphetamine of 87% purity making this a serious example of non-commercial trafficking. The threshold, to be clear, for commercial trafficking in methamphetamine is 250 grams mixed.
(c) The quantum of proceeds of crime is also significant, that is $4,685 in cash.
MATTERS OF PRINCIPLE
General matters
85I will turn now to matters of principle. I will begin with general matters. Just punishment, general deterrence and denunciation are all very important when dealing with offences of trafficking in a drug of dependence and especially relevant due to the harm that trafficking in drugs of dependence cause both for individuals and to the community.[10]
[10]R v Berisha [1999] VSCA 112 at [33]; R v Starr [2002] VSCA 180 at [26]; R v James [2003] VSCA 13 at [13]; Lieu v The Queen (2016) 263 A Crim R 173 at [54].
86Protection of community is relevant to the harm trafficking in drugs of dependence can cause to the community. This needs to be viewed more widely to acknowledge the community can be protected by the reform of an individual.
Plea of guilty
87It is well established following the decision of Worboyes v The Queen[11] that a plea of guilty during the pandemic will have a greater utilitarian benefit than in ordinary times and it must amount to a palpable amelioration of sentence. Whilst the plea was not entered at the earliest opportunity, it was entered prior to the listing of a trial and the utilitarian value of the plea must be acknowledged. The Crown very sensibly accept that this is so.
[11][2021] VSCA 169.
88It has not been asserted that this plea is accompanied by remorse.
Delay
89The offending in this case occurred on 28 March 2020. Whilst it is not submitted the delay is inordinate or attributable to any fault of the prosecution, the fact remains that over two years have passed between the offending behaviour and the resolution of the matter.
90Delay is particularly relevant where a person has made changes to their life, particularly if they have started to address the issues that contributed to the offending behaviour. It was submitted that yours was a case where you commenced the process of addressing such behaviours.
91I acknowledge that having the matter unresolved for a long period of time caused you real anxiety. I also acknowledge that you did make genuine efforts to remain abstinent from drugs.
Prospects for reform and specific deterrence
92It was submitted and I accept that you did make some important progress since the offending in this case. Since being released on (unsupervised) bail, you commenced a new relationship with Ms Vivas who does not use illicit drugs, you retained casual employment and appeared to be offence free for more than two years.
93There is clearly a substantial need for suitably focused and structured treatment your case. Mr Newton opines your risk for relapse to substance-related problems would be elevated in the period immediately following resolution of the case and especially high following any eventual release from any period in custody which the court might deem appropriate. Such a relapse to drug use on your part would constitute the major criminogenic risk factor in the case (but not the sole risk factor, noting that you have some deep roots that reach back into pro-criminal influences, otherwise known as undesirable peers).
94It would be extremely important for you to be provided with an environment after release where abstinence could be closely monitored and where you could be mandated to receive appropriate treatment as required.
95Not only would such steps serve to protect the community from harm through further offending on your part, but they would also maximise your prospects that would see you successfully break the cycle of offending and move on to productive engagement with mainstream society.
96I very much attempted to enhance those prospects given what I considered the scarcity of professional supports around you while you were previously at large. You were placed on CISP bail after a successful assessment.[12]
[12]Exhibit 9: CISP Suitability Report dated 21 June 2022.
97I deferred sentence for six months in order for you to avail yourself of supports and services in a way that you had not done so before.
98You remained supervised and assisted though for only around three months before being taken back into custody for fresh offending. I am informed that you were on what was termed a positive trajectory towards reform when you relapsed - connected in some way with antisocial peers and then drove in a dangerous and troubling manner.
99I agree that there were some promising signs when you were CISP, and it is most regrettable that this could not continue past October.
100Your future is very much in the balance Mr Duong Cottonaro. I find you have prospects and you may be amenable to supervision, but that view is clouded. The CCO assessor Ms Alonso described you as a being a high risk of re-offending for instance and a view that was vindicated it seems, given the events of September 2022.
101You have a significant enough criminal record, including convictions for trafficking methamphetamine in both 2016 and 2014 for which custodial penalties were imposed. You have breached many previous non-custodial sentences including a drug treatment order.
102Ms Jansen submitted that despite your breach of bail by further offending, you still have prospects of reform. Not only have you kept yourself occupied during your time in prison, but a key feature of that submission about your prospect hinges on the support of Ms Vivas. She has provided a further reference confirming same. I note though, you enjoyed her support at the time that you reoffended.
103Further, you have stable accommodation with your mother and partner away from former associates. I note that this breach of bail, that I am not dealing with, but am aware of, seems to occur with you acting alone, and did not require the input or influence of others to encourage you to commit them, save for what has been described as a reengagement or relapse with former antisocial peers.
104I am told that you have employment at DLO Projects upon release and I have received a reference from the owner of that business confirming same.[13]
[13]Exhibit 18: Reference of Daniel Orchard dated 21 January 2023.
105The ‘plan’ that is said to exist in your mind about your ability to reduce your own temptation to re-offend (such as moving, changing phone numbers, selling your motorbike),[14]whilst admirable and clearly supported by Ms Vivas, is clearly extremely optimistic and one which would need serious re-enforcement through the parole board and post-sentence supports, in my view.
[14]Exhibit 16: Submissions of the Accused dated 21 January 2023.
Suitability of a CCO
106On the issue of suitability of a CCO, it was submitted that your prospects for long-term abstinence are tied to your ability to improve your self-esteem and sense of identity. A Community Corrections Order, it was said, was the most likely of the available sentencing dispositions to assist you in addressing those issues.
107For this reason, a CCO, which mandates oversight and monitoring, was said to offer a better chance of you ultimately maintaining abstinence and avoiding the risk of reoffending.
108Mr Terry said the combination[15] of comparative cases he referred me to, as well as statistical data supported the proposition that CCOs, or combination sentences involving short-periods of ‘time-served’, along with a CCO, are within range for cases of trafficking in non-commercial quantities that are dealt with in the County Court.
[15]Ibid.
109I did, of course, have you assessed for a CCO. The report is thorough and informative. You still, as I have said, present as a high risk of re-offending, although you do appear to be motivated to change and have limited supports.
110Despite being given both time and support to demonstrate your capacity for reform, you appear to have squandered this opportunity and re-offended in the way I am about to outline.
Further offending
111You further offended during the deferral period. I am told on 5 September 2022, you drove your motorcycle dangerously, at high speed on the footpath to evade police, which breached no less than two conduct conditions of bail (that is, not to drive a motor vehicle and to abide by the curfew). You drove while disqualified and committed an offence whilst on bail. This is offending where the informant is Theodorou.[16] This type of conduct is not novel for you either when one considers your prior convictions. You were taken into custody where you have remained ever since on the 4 October 2022.
[16]Ibid.
112It was conceded by Ms Jansen[17] that you relapsed into drug use for the week leading up to the present offending.
[17]Ibid.
113You have remained in custody as a result of that further offending. I am told the matter will proceed as a plea of guilty on 7 February 2023 at Heidelberg. I am told that this relapse is a source of deep regret for you, and I accept that this is so.
114But for obvious reasons this throws into doubt your capacity to abide by court-ordered conditions on your liberty.
115You accumulated 61 days of PSD in relation to the matter that I am dealing with and have been in custody for a total of 111 days in total (which takes into account the time referrable only to the Theodorou matter).
Comparable cases
116I was provided with a precis of seven cases from this court that are said to be comparable.[18] The cases were decided between 2016 and 2018. They were all pleas of guilty that were entered pre-pandemic. All cases involve trafficking large amounts of drugs (as was the case here). The penalties imposed in those cases, when they do involve imprisonment is by months measurable in single figures. Often they involve very lengthy CCOs.
[18]Exhibit 8: Comparative Cases.
117Without establishing a range per se, or being applicable in the same way as sentencing for co-accused might be when considering parity, the cases are useful, to some extent, in establishing that it is possible, possible in some cases for offences of this kind to be dealt with that involves imposition of a combination sentence. Yours is not such a case.
Sentencing statistics
118The above was said to be further supported by the recently published SAC statistics for trafficking or cultivation when dealing with the higher courts. Recognising the limits of such statistics, it is relevant to note from the following data from the SAC, incorporating outcomes from between July 2015 and June 2020.
(a) Seventy-nine per cent of offenders dealt with for non-commercial trafficking in the higher courts during this period received a sentence of imprisonment. Obviously there is a corollary that that figure is 21.1% of offenders in this period received a sentence other than imprisonment;
(b) In the same period, only 58.6% of offenders aged between 20-24 received a sentence of imprisonment for non-commercial quantity of trafficking. Again, the corollary of that is, 41% of offenders between that same age did not receive a period of imprisonment. Thirty-one per cent of the total population of offenders dealt with for non-commercial trafficking received a CCO. Whilst you were 25 at the time of the alleged - well, proven offending, you are closer to the median age of this cohort, compared to the median age of the next bracket (which is 25-35).
119Mr Roper says that when considering that statistical data, the Sentencing Advisory Council Snapshot 267 shows that 253 people in the County and Supreme Courts of Victoria for trafficking in a drug of dependence between 2016 and 2021, of 81.8% of which received a sentence of imprisonment and 15% received a CCO. Further, the snapshot contains following qualification. The data in the snapshot is likely to have been affected by the COVID pandemic response. For instance:
(a) the number of people sentenced since March 2020 may be lower than in previous years because of the pandemic caused delays in court proceedings;
(b) backlogs have led to prioritisation of more serious cases and therefore higher imprisonment rates than in previous years;
(c) prison sentences might be shorter in previous years to reflect the combined effect of:
(i)the Worboyes principle
(ii)the experience of prison being more burdensome and the like.
COVID-19 and conditions in custody
120You have been removed from our community in the form of remand. It is well-known that the conditions in custody have been particularly onerous during the pandemic. These conditions have remained ongoing. I accept that even in these arduous conditions, you have strived to keep yourself occupied and make yourself better. This is an especially punitive aspect at present associated with being a remandee. My sentence will take into account the conditions you have served your remand in and the conditions in which you will serve your sentence prior to your ultimate release.
Parity
121By way of parity, the only relevance on this point is that it informs, to a very, very limited extent, the issue of parity. Ms Armstrong-Lappin received a CCO for her involvement in the offending. In her case, this involvement was not said to include the possession or supply of the 200 g of methamphetamine. Ms Armstrong-Lappin was dealt with in relation to numerous other drugs found in her unit. Despite the evidence clearly linking her to the supply of methamphetamine, the prosecution decided not to proceed with charges against her in relation to that substance.
122Given the way though the prosecution has elected to proceed with this matter, withdrawing the trafficking charge against Ms Armstrong-Lappin in the face of clear evidence she was involved, it seems particularly difficult to make a strict parity argument.
123More broadly, I suppose, the principle of parity has some application based on Ms Armstrong-Lappin having entered pleas of guilty for possession of a significant quantity of drugs in her unit. She received a Community Corrections Order, but her history was not at all like yours.
Totality
124I am mindful of the significance in this case of the application of the principle which requires me when sentencing you for multiple offences to ensure the aggregate term I impose is just and appropriate measure of the total criminality involved. There must be appropriate relatively between the totality of all the criminality and the totality of the effective sentence I impose. This is true when I consider the interaction between charges on the indictment. I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing considerations into account and designated the highest term as the base sentence and then I have determined the extent to which there should be any cumulation regarding each count and I finally stood back and considered in light of totality what an appropriate sentence ought to be.
Bugmy
125Adverse childhood experiences can result in a juvenile approach to decision-making. The law has always recognised that immaturity of a youth is relevant to an assessment of their culpability.[19]
[19]Azzopardi v R (2011) 35 VR 43 at [34].
126Though your chronological age is far beyond the stage at which immaturity would ordinarily have a part to play in assessing culpability, in your case, the immaturity – resulting as it does, to some extent, from your adverse childhood experiences – does have a part to play in assessing moral culpability. That is more so because of the drug addiction, which provides the setting for this offending, similarly has its origins in your terrible childhood experiences. Mr Roper very sensibly agrees that the principle applies in this way.
127This point – that when a person’s childhood experience renders them less mature, that bears upon the appropriate sentence – was made by the plurality in Bugmy at [43]:
The experience of growing up in an environment surrounded by alcohol abuse and violence might leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence…[20]
[20](2013) 249 CLR 571 at [43].
128It is for these reasons I have modestly reduced your culpability. Should you continue to offend though, Mr Duong-Cottonaro, this aspect of your life will tell against you – making you harder and harder to deter from reoffending and more difficult to reform.
FORMULATION OF SENTENCE
129Counsel, on your behalf, submitted a combination involving a CCO was appropriate. A CCO, whether standalone or in combination with a term of imprisonment can, in certain circumstances, obviously be appropriate sentence to impose, even for serious offending.
130Mr Roper submitted on behalf of the Director that there must be a term of imprisonment imposed with a non-parole period.
131In my view, this is not a case where a CCO is appropriate, either alone or in combination. The offending is simply too serious, and you are an offender with a recent and extremely relevant prior criminal history who even still presents as a high risk of re-offending – as demonstrated by the fact that you further offended whilst on bail.
132As I foreshadowed at the outset, I am going to impose a total effective sentence and non-parole period for the offending. For your benefit, and the benefit of the community, the timing of your release and the very strict manner in which you will be supervised and assisted in the community will be a matter for the adult parole board.
133It is so obvious that you require supervision, monitoring and assistance. In fixing an appropriate sentence for you and allowing for the possibility of parole, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which sentence is imposed.
134The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time I determine justice requires you to serve, having regard to all the circumstances, but due to the constellation of mitigatory factors in your case, I have concluded it is appropriate to allow for a longer than usual parole component to your sentence. Accordingly, the non-parole period, that is, the period of imprisonment to be served before you become eligible for release under parole, will be shorter than usual to take appropriately into account the number of mitigatory factors in this case and to facilitate your reintegration into the community and ultimate rehabilitation.
135I sentence you as follows
(a) Charge 1, one month.
(b) Charge 2, traffic methamphetamine, 22 months. That is the base sentence.
(c) Charge 3, negligently dealing with proceeds of crime, four months.
(d) Charge 4, trafficking Alprazolam, five months.
136There is no cumulation to be imposed with respect to Charge 1 on the base. I will impose one month of Charge 3 on the sentence imposed on Charge 2. I will impose one month cumulation on the sentence imposed on Charge 4, on the sentence imposed on Charges 2 and 3. That should bring about the total effective sentence that I announced at the outset, namely 24 months.
137Consistent with those comments I made earlier about a longer than usual non-parole period, I am setting a non-parole period of 12 months. That is half of the head sentence before Mr Duong-Cottonaro is eligible for release.
138Pursuant to s18 of the Sentencing Act, I declare 61 days declared as pre-sentence detention.
Section 6AAA
139To give you some sense of what your plea of guilty is worth, Mr Duong-Cottonaro, I give the following indication under s6AAA. But for a plea of guilty to the charges that are before me, I would have sentenced you to three years and nine months' imprisonment and I would have set a non-parole period of two years for these offences.
Ancillary orders
1I will make the forfeiture and disposal orders in the terms sought. Does anything require clarification, counsel?
2MR ROPER: No, Your Honour, not from the prosecution's point of view.
3MS JANSEN: No, Your Honour.
4HIS HONOUR: Would you like an opportunity to discuss with Mr Duong-Cottonaro and his friends and family, or just maybe Mr Duong-Cottonaro when I adjourn the court, via the link?
5MS JANSEN: Yes please, Your Honour, that would be appreciated.
6HIS HONOUR: All right, Ms Bell, would you be able to accommodate that?
7ASSOCIATE: Yes Your Honour.
8HIS HONOUR: Thank you. Can I thank you, Ms Jansen and your predecessor, Mr Terry. I thank you, Mr Roper, too and Mr Duong-Cottonaro, I genuinely hope that you are paroled as early as you can be and that you make a real go of it. I really hope that. I hope that we never encounter each other again. Adjourn the court, thanks.
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