Director of Public Prosecutions v Fatho
[2019] VCC 1260
•11 July 2019 & 12 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-18-02410
CR-18-02409
CR-18-02384
CR-18-02391
CR-18-02386
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AYSAR FATHO NGOC HUYNH JOHN MANSOOR JAMES VAN ANDREA VERRINA [deferred] |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF PLEA: | 13, 14, 15, 16, 17 May 2019, 27 June 2019 |
| DATE OF SENTENCE: | 11 July 2019 & 12 July 2019 |
| CASE MAY BE CITED AS: | DPP v Fatho & Ors |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1260 |
REASONS FOR SENTENCE
---Subject: Sentencing
Catchwords: Trafficking commercial quantity of a drug of dependence; trafficking in a drug of dependence; possessing a drug of dependence; dealing with property suspected of being the proceeds of crime; possessing cartridge ammunition without a permit; conspiracy to traffic in a commercial quantity of a drug of dependence; prohibited person possess firearm; burglary; commit indictable offence while on bail
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991 ss 5(2H), 6AAA, 40(1)
Cases Cited:R v Pidoto & O’Dea [2006] VSCA 185; Bugeja v R [2010] VSCA 32; Boulton v The Queen [2014] VSCA 342; Gregory (a pseudonym) v R [2017] VSCA 151; Sharbell v R [2017] VCC 1918; Akoka v The Queen [2017] VSCA 214; DPP v Dalgleish (a Pseudonym) [2017] HCA 41; DPP v Bchinnati [2018] VCC 372;; Ellis v R [2018] VSCA 221; DPP v Carron & Gallin [2018] VCC 1469
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For Accused Fatho | Mr D. Sala (Plea) Ms N. Giorgianni (Sentence) | Giorgianni & Liang Lawyers |
| For Accused Huynh | Mr J. Dickinson QC (Plea, Further Plea and Sentence) | Melasecca Kelly & Zayler |
| For Accused Mansoor | Mr B. Johnston (Plea) Ms N. Giorgianni (Sentence) | Giorgianni & Liang Lawyers |
| For Accused Van | Mr J. Dickinson QC (Plea) Mr M. Kelly (Sentence) | Melasecca Kelly & Zayler |
| For Accused Verrina | Mr P. Dunn QC (Plea) Mr D Cole (Sentence) | Dean Cole & Associates |
For the Prosecution | Ms A Singh (Plea) | Vanessa Mellios, Solicitor for the Office of Public prosecutions |
HER HONOUR:
1Aysar Fatho, John Mansoor, Ngoc Huynh, and James Van, each of you has pleaded guilty to charges including, and relating to, the trafficking of drugs. I shall set out the specific charges relating to each of you when I deal with each of you individually. Some of you have also pleaded guilty to some related summary charges.
2Aysar Fatho and James Van, you have also admitted your respective prior criminal histories, to which I shall refer in relation to your individual circumstances.
3The principal charges here are trafficking in a commercial quantity of a drug of dependence, conspiracy to traffic in a commercial quantity of a drug of dependence, or trafficking in a drug of dependence.
4The maximum penalty for trafficking in not less than a commercial quantity of a drug of dependence is 25 years imprisonment, and that is the same maximum penalty for the charge of conspiracy to traffic in a commercial quantity. For trafficking in a drug of dependence, the maximum is 15 years’ imprisonment. While some of you face other charges as well, these are the highest of the maximum penalties, and are an objective indication of how seriously offending of this nature is regarded by Parliament on behalf of the community, and courts must take that into account when imposing sentences for such offending.
5Further, for certain charges – here, only the charge where it applies of trafficking in a commercial quantity of a drug of dependence – s.5(2H) of the Sentencing Act requires that a term of imprisonment be imposed, not being part of a combination with a Community Correction Order, unless the offender falls within certain exceptions. That section applies for only two of you being sentenced today – that is Aysar Fatho and John Mansoor – and it has not been suggested that either of you falls within one of the exceptions.
6The charges against all of you arise out of a police investigation commencing late 2017, into the trafficking in drugs by some of you, which led to the involvement of the others being detected. One group, which the police call a syndicate, involved you, Aysar Fatho, and your brother Andy Fatho, and John Mansoor. Also, another brother and one or more other persons are alleged to have been involved, but they are to stand trial on charges arising from these events, and I will not say more about their alleged roles.
7Some of your dealings were with another group, or syndicate, which included Mr Van, Mr Huynh, and two others allegedly associated with them. Mr Fatho, you and your group referred to all of them as “the Chinese,” although they were in fact of Vietnamese background.
8The circumstances behind these charges involve the intended trafficking in the substance called 1,4-Butanediol, which although it is a chemical which can be used legally as a cleaning agent, is a proscribed drug of dependence where not used legally, and when ingested, it metabolises into the drug known as GHB.
9The substance 1,4-Butanediol (which I shall mainly abbreviate to “1,4-BD”) is often supplied in bulk in liquid form, but can be reduced to powder, still as part of a mixture. Under the Drugs, Poisons and Controlled Substances Act, a commercial quantity of that drug is two kilograms or more of a substance containing it. Unlike for most other drugs of dependence, there is no threshold amount defined for a “large commercial quantity” of that drug.
10I turn now to some general sentencing principles.
11The distribution and use of drugs in our community is well recognised as causing extensive harm to the whole community. It impacts destructively on the health and lives of individuals, and often their families, and is very costly to the community in medical and other services. It also undermines the ability of many drug users to perform constructive activities in the community, including employment.
12I have already said that the maximum penalties for the offences of trafficking in drugs reflect the objective seriousness. The most important sentencing factors for such charges are almost invariably general deterrence and community denunciation. General deterrence means sending the message to others tempted to engage in such activity, that a stern punishment is likely to result. In many circumstances, protection of the community is also an important sentencing factor.
13When sentencing for these offences, as for any others, the court must assess both the objective seriousness of the actual circumstances, and the personal role and culpability of the individual offender. The amount of the drug involved will be important, especially in relation to objective seriousness, as the legislative regime sets out quantities in respect of each proscribed drug,[1] including as to what constitutes a commercial quantity or, for most drugs, a large commercial quantity.
[1]R v Pidoto & O’Dea [2006] VSCA 185
14A sentencing court should assess the proportionality of the actual amounts involved to those threshold amounts, rather than focus on the nature of the specific drug. I will interpolate here that my reasons will have footnotes of the authorities for these propositions, but I am not going to spend time naming them all with citations as I read out my sentence.
15While the categorisation of the seriousness of drug offences of this nature is to focus on the quantities of the drugs involved and their proportionality to the amounts defined in the thresholds, I note that in many cases involving 1,4-BD, large quantities of liquid containing that drug are not always viewed as being as serious as the same multiples of threshold quantities of some other drugs.[2] Whether that is because there is no threshold for a large commercial quantity, or because the substance is capable of having a lawful use, other than as a drug, or whether because it has been said to have lower margins of profit, or whether because of the large quantities of liquid mixture in which it is often found, is unclear. I have kept the quantities in mind, and not approached the sentences as if this drug were, of itself, less harmful than others.
[2]Bugeja v R [2010] VSCA 32; Ellis v R [2018] VSCA 221 at [21], [23], [25]
16I have considered the cases to which I was referred by various parties, relating to this particular drug, in considering current sentencing practice. However, the Court of Appeal in Sharbell[3] made clear that sentences imposed prior to the case which goes under the pseudonym of Gregory,[4] cannot be helpful in this task of considering current sentencing practice, because since the case of Gregory,[5] sentencing practice for trafficking in a commercial quantity of drugs has changed. Further, other cases cannot be regarded as more than a guide and one of the factors to consider in sentencing, and such practices do not set outer limits for sentences.[6]
[3]Sharbell v R [2017] VCC 1918
[4]Gregory (a pseudonym) v R [2017] VSCA 151
[5]Gregory (a pseudonym) v R [2017] VSCA 151
[6]DPP v Dalgleish (a pseudonym) [2017] HCA 41
17I turn now to an overview of the circumstances of the offending. Aysar Fatho, in January 2018, you were looking for a source of 1,4-Butanediol for the purpose of trafficking it. Mr Verrina learnt of this and offered to provide, or arrange through someone he knew for a supply of it for you. You purchased from him a quantity of what you thought was 1,4-BD, intending that some of it would be distributed to customers through your network of associates, and that a bulk amount of it would be sold to another group, or syndicate, of drug traffickers, whom as I have already said, you called “the Chinese.” You knew that they would distribute it to ultimate users.
18It is not clear on the facts available to me, who was in control or behind that other group, as only the roles of Mr Huynh and Mr Van have been made known for the purposes of this hearing. Both of them had some conversations with you – that is you, Mr Aysar Fatho. As far as I can determine, more of those mentioned were with Mr Van then Mr Huynh, but both of them apparently used the same mobile phone number for those conversations with you, and it is not clear to me how many other people may have been party to conversations with you.
19Police became aware of this intended trafficking through the interception of mobile phone numbers, which they had been monitoring pursuant to warrants from December 2017, and their involvement culminated in their intervention shortly after 5 pm on 28 April 2018.
20While discussions about obtaining such substance from Mr Verrina commenced in early 2018, and there was discussion of a supply which fell through, it was not until 20 March 2018 that some hundreds of litres of the product promised as 1,4-BD was delivered. It had been obtained from or through Mr Verrina, who put it forward to Aysar Fatho as 1,4-Butanediol, but, in fact, it was not.
21That product was supplied to James Van and Ngoc Huynh. However, they soon had reports that it was of poor quality, and they were receiving complaints from their ultimate users or consumers of it, and requests for refunds. They then complained to Aysar Fatho, and there were attempts by you, Mr Fatho, to get Mr Verrina to replace the product, or to otherwise solve the problem. He avoided numerous calls and some proposed meetings. For a short period, you, Mr Fatho, accepted Mr Verrina's suggestion that it would be possible by mixing in other chemicals to change the product into properly functioning 1,4-Butanediol.
22When that did not work, or did not stop the complaints from consumers to Van and Huynh and their associates and the forwarding of those complaints to you, you, Aysar Fatho, apparently decided to obtain substitute product. Overnight, between 26 and 27 April 2018, you, Aysar Fatho, allegedly with a co-offender who is not one of the other co-offenders here, entered a property in Deer Park, where there was storage of a chemical company which had lawful possession of large quantities of 1,4-Butanediol.
23You took eight 200-litre barrels of it. You had apparently intended to take ten such barrels, but were almost caught at that activity and left with only eight. You intended to use some of this product to replace the previously supplied amounts, about which there had been complaint, and an arrangement was reached that two of those barrels, or subsequently referred to as an amount of 525 kilograms, would be provided to Mr Van and Mr Huynh and their associates, in exchange for the initially supplied bad product.
24This exchange was to occur on 28 April 2018, and there were many calls intercepted by police that day about issues of availability of suitable transportation, and men to load or unload the drug substance, and who was asleep or not available at various times. Police were also keeping surveillance on various relevant people and premises, including your residence, Aysar Fatho, and also a storage premises of which you at least had some control at 52 Potter Street, Craigieburn.
25Shortly after 5 pm, police entered the storage premises. At that time, you, John Mansoor, and Andy and Aymon Fatho, were loading barrels into a trailer attached to a white van. All three ran away and a foot chase followed, and each of those three men was caught and arrested. Shortly afterwards, police entered and searched your residence, Aysar Fatho. Although you initially you ran, you were arrested nearby, and another alleged co-offender was arrested at your residence.
26Over the following weeks, police successively arrested the others of you – lastly Mr Verrina.
27Each of you who are before me, have spent some time in custody after your arrest. Some of you later obtained bail, but others did not, and I will go through the specifics in relation to each of you.
28Even though some of your roles were more limited than others, any participation along the chain of supply or distribution of drugs, enables that process to be achieved, and furthers the potential harm from distribution of quantities of drugs of this nature within the community.
29Notwithstanding that there was a lack of effective organisation or competence in several aspects of what occurred here, and it is unclear the extent of the profit that would have been made, or by whom, in respect of some of the stages, that does not mean that this was not to be regarded as serious offending. It was dealing, or the intention to deal, in large quantities of the particular drug of dependence, and to profit from it.
30I move then to deal with each of you individually.
31I start with you, Aysar Fatho, and because of your overall role and the numbers of charges against you, this will occupy quite a degree of time. I might call a break during that time.
32Aysar Fatho, you are alleged to have been the principal organiser of these arrangements, and the leader of your group or syndicate. You are also facing, as I have said, the most charges arising out of the events, of the men who are before me to be sentenced. Specifically, you have pleaded guilty to one charge of trafficking in a commercial quantity of 1,4-BD, one charge of burglary, one charge of trafficking in methylamphetamine, three charges of being a prohibited person in possession of a firearm, and two charges of possession of a drug of dependence. Those relate to some Xanax and some cannabis.
33You have also agreed to have heard in this court, and have pleaded guilty to, two related summary charges. One is of dealing with property suspected of being the proceeds of crime, and one of committing an indictable offence while on bail.
34I have already stated the maximum penalties for trafficking charges. The maximum for burglary, and for each charge of being a prohibited person in possession of a firearm, is ten years’ imprisonment. For possession of a drug of dependence, it is five years’ imprisonment, unless the court is satisfied that it is not for other than personal use, in which case it is one year. For each of the summary offences, the maximum penalty is two years imprisonment.
35I turn now to discuss your involvement in each of these offences and to assess its seriousness.
36Charge 1, of trafficking in a commercial quantity of 1,4-BD, is based on your conduct over the period from 20 January to 28 April 2018. According to the summary of facts to which you have agreed, you sought out a source, and offered for sale to James Van and Ngoc Huynh, 200 to 500 litres of product alleged to be 1,4-BD. You negotiated a price for it, discussed a further future supply with Mr Van, and although the initial supply fell through, you continued to try to source the drug. Once some became available through Mr Verrina's source, you prepared it into containers and arranged for its delivery. When complaints about the quality of what you had supplied were received, you were the one they contacted, and you tried to reach Mr Verrina and arrange a solution, and when Mr Verrina said it could be made good by mixing in other chemicals, you tried that.
37Ultimately, you took action to obtain another supply, some of which was intended to be used to replace the poor quality product that had been supplied to the other syndicate, and the rest to be used for other trafficking. You agreed to, and made at least some of, the arrangements for the exchange on 28 April 2018. You made the arrangements with Mr Van and Mr Huynh, and for your brothers and Mr Mansoor to load the trailer, and then drive and exchange it, as well as an intended further supply.
38At 52 Potter Street Craigieburn, the storage yard over which you had at least some control, a large number of containers of various sizes, containing clear liquids were found. Drug analysis concluded that there were two substances within those containers, barrels, and bottles. One of those substances was 1,4-Butanediol. Also found was another substance, which is not a drug of dependence under the schedule.
39A total of 1,402 kilograms of substance containing 1,4-Butanediol was located at those premises. The threshold amount that constitutes a commercial quantity of this drug is two kilograms. This total amount found was therefore some seven hundred times the commercial quantity. The amount agreed to be supplied to Mr Van and Mr Huynh in the intended exchange on 28 April was 525 kilograms, being some 260 times the commercial quantity. All of this conduct in combination is the basis of Charge 1.
40Charge 2 against you is of burglary. That arises from your actions overnight between 26 and 27 April 2018, when, with at least one other man, you entered without permission on the property of a company operating a chemical plant in Ballarat Road, Deer Park, and took eight 200 litre barrels of 1,4-BD. The police intercepted conversations on 27 April, in which you told your brother, Andy, that you and another man had stolen eight barrels that were 200 litres each, that your associate security guard friend had assisted you, that you had meant to take ten barrels, but almost got caught, and that two of the barrels were intended to swap over with the people that you called “the Chinese.” Your entering those premises to steal that product is the basis of Charge 2 against you of burglary. This was apparently done to obtain replacement drug product, after you were unable to obtain a satisfactory solution or alternative supply through Mr Verrina.
41This was apparently done to obtain replacement drug product, after you were unable to obtain a satisfactory solution or alternative supply through Mr Verrina.
42I have already described how police intercepted the loading of some of the barrels of stolen product on 28 April, and searched your storage yard. Some twenty minutes later, police entered your residence at 4 Stockton Street. You ran and jumped a side fence, but police located you and you were arrested.
43Police located a sawn-off shotgun with two spent cartridges in the chamber in the door trim of a van which you had been observed to drive to 52 Potter Street. This shotgun is the subject of Charge 3 against you, of being a prohibited person possessing a firearm. You were a prohibited person by virtue of your prior convictions.
44Upon execution of the search warrant at your home in Stockton Street on 28 April, police also found a total of 114.4 grams of cannabis located in the kitchen pantry, master bedroom, and in four locations in the garage. That is the subject of Charge 8 against you of possessing a drug of dependence, namely cannabis.
45Also located at your residence was a quantity of methylamphetamine, totalling 97.7 grams, located under the coffee table in the garage. Police also found certain accoutrements of trafficking, including a set of digital scales behind the microwave in the kitchen, a quantity of a cutting agent, and two other substances that could be used as a cutting agent. These matters are the subject and basis of Charge 6 against you, of trafficking in a drug of dependence, namely methylamphetamine.
46Police also found a quantity of a medication in another person's name. It was forty-one tablets analysed to be Alprazolam, which is known as Xanax, and this is the basis of Charge 7 on the indictment of possessing that drug of dependence.
47Located in a black case on the couch in the garage at your residence were two further unregistered firearms; namely, a handgun and a 1911 model semi-automatic handgun. Those are respectively the subject of Charges 4 and 5 on the indictment, of being a prohibited person in possession of a firearm.
48Police also identified three stolen vehicles in your storage yard; a Jeep Cherokee Wagon which had been stolen from the front of a residential address in Craigieburn in late December 2107; a grey box trailer stolen from outside a Craigieburn address in November 2017, that being a registered vehicle; and a blue Ford XR6 which had been stolen from outside a Pascoe Vale Road, Glenroy address in August 2017. Those vehicles, together with a Panther ring found at your house, are the subject of a summary charge against you of dealing with property suspected of being proceeds of crime.
49There can be no doubt that you are to be sentenced for some very serious offending. Just because it was not particularly sophisticated or competently carried out, does not detract from the seriousness of this offending.
50The trafficking in the 1,4-BD appears to have been initiated by you and, overall, under your control. You sought out a supply of the drug for the purpose of making profit from its distribution, in various ways, some of it to be sold to another syndicate or group of drug traffickers, for them to distribute to the ultimate users.
51You clearly did this for profit, and although you were duped by Mr Verrina, in that the product he obtained for you was not what he told you it would be, you pursued attempts through him, until they proved unlikely to succeed, to obtain replacement or information that would enable the product to be made into what you wanted it to be. You then carried out a burglary to obtain genuine product in order to use it for further trafficking purposes. As I have said, some to replace the previous poor supply, and the rest to be trafficked through your own other channels.
52This disregard for the consequences of using such chemicals as a drug of dependence is very clear and as I have said, even though you did not achieve what you were aiming to achieve, your purpose was objectively very serious. The fact that you were prepared to involve your younger brother in this offending also shows your disregard for any responsibility within that family network, and particularly for a younger sibling. I make no comment in relation to your older brother, who apparently denies the charges against him.
53Your counsel submitted that even though the aim of the trafficking was for profit, the purpose for it should be taken to somewhat reduce your overall culpability, in that this was ultimately said to be for the purpose of gaining enough money to support your own drug habit, rather than to accumulate ultimate wealth.
54I accept that motivation of supporting your own drug use is less objectively serious in itself than pure greed, or self-aggrandisement. But offending to support your own drug habit cannot be an excuse for engaging in what was objectively, very serious offending.
55There is nothing to indicate that the burglary in itself caused damage to the property involved, but the fact that it was targeted with knowledge that a large supply of the specific substance you were seeking was present, reflects that it was not spontaneous or random and must have been planned. These features make it objectively, in my view, quite a serious instance of burglary, as does your personal motivation, which was to obtain a large quantity of the substance, to traffic it as a drug of dependence, including using some to exchange, to solve the issue that had arisen with complaints about the previous supply’s quality.
56In relation to the firearms found at your residence, you were a prohibited person because of prior convictions. I am told that they may have been left by other people in your premises. There is no evidence on which I could decide whether or not that was likely, but I note that one of the firearms, in which there were spent cartridges, was in a vehicle that you had taken to your storage premises. The presence of these firearms at your premises, and therefore within your possession, is an objectively serious prospect, although there is no evidence of you actually using them at any stage for any purpose.
57Possession of the Xanax and cannabis, I am told, was for personal use, consistent with the extensive list of drugs you have instructed that you were using or abusing at the time. The maximum penalty is five years, or only one year if I am satisfied on the balance of probabilities that those drugs were not possessed for a purpose of trafficking in those drugs. As compared with the other offences, I consider these much less serious, and further I am prepared to find on the balance of probabilities that they were for personal use and not for the purpose of trafficking.
58The charge of trafficking in methylamphetamine, however, is more serious. The amount was significant, although not as much as a commercial quantity, and the accoutrements for trafficking, such as the scales and the presence of cutting agent, was an indication that it was not solely for personal use. Even if you did also use this drug, you have pleaded to the charge of trafficking, and thereby acknowledged that. The maximum penalty of fifteen years’ imprisonment is well beyond what you will be receiving on that charge in these circumstances. However, it reflects the objective seriousness.
59Whether or not hampered in your thinking or planning through the effects of your own drug addiction, you were prepared to engage over this period in whatever activities could to gain you money. Even if that was primarily to feed your own habit, it involved also under this charge the extending of the supply of the drug methylamphetamine to others. I do not regard this charge, however, as nearly as serious in its objective or subjective details as Charge 1 of trafficking in a commercial quantity of 1,4-BD.
60Finally, there are the summary charges, which you have consented to have heard with these matters. In particular, Summary Charge 12 of dealing with property suspected of being proceeds of crime, relates to what police found at premises occupied by you. There were three stolen vehicles, each worth several thousand dollars. You are not charged with the theft of those, and I note that each of those vehicles was stolen on a different date. There is no evidence as to when any of them came into your possession. There is also the ring found in your possession which is also said, at least if it were genuine, to have some value. I am not clear as to whether that ring came into your possession through you having bought it from Mr Verrina, as he had apparently sold you a ring, purportedly a genuine one of noted value, whereas it was not in fact genuine.
61Nevertheless, I take from this charge that you were prepared to engage in criminal activity by possessing these items, reasonably suspected of being proceeds of crime. They are the subject of a single charge, and it is brought as a summary charge invoking a lower maximum penalty than would have been applied had an equivalent indictable charge been placed. I am dealing here with the summary charge.
62The fact that you were found in possession of stolen vehicles, in possession of guns for which you were a prohibited person, and also in possession of some cannabis and Xanax, and methylamphetamine with signs of trafficking it, indicates that you were prepared to possess and engage in a variety of different illegal activities, whether or not they were connected, and I infer that most of this offending was for some type of profit for you. To be specific, I have not found that to be the aim, the purpose, of the possession of the cannabis or Xanax.
63I take into account that you have pleaded guilty to all of these charges, and you are entitled to some considerable leniency for doing so. Although the pleas were not entered for you until day three of the listed committal hearing, the prosecution conceded, and I accept, that in the circumstances, this is to be regarded as a reasonably early plea of guilty, given the complexity of the factual allegations, and the number of charges, and also taking into account that you, and indeed the others falling to be sentenced by me, who have pleaded guilty, had not required any witnesses to be cross-examined, and were proceeding by way of a straight hand-up brief.
64The extensive number of charges, and their factual basis, and the several months over which your offending is alleged to have occurred, mean that there was very considerable utilitarian value – by that I mean, the saving of time and cost of disputed hearings and the calling of many witnesses – as well as your acknowledgement of responsibility for your offending. In your case, I also accept that your pleas of guilty do stand as a reflection of remorse on your part. I have read, and will refer to later, a letter you have written to the court, and also read what you told Mr Cummins, which also contains expressions and signs of you expressing your remorse.
65I shall tell you when I have imposed sentence on you, what the sentence would have been, had you not pleaded guilty but been found guilty of these charges after disputed hearings.
66I am about to turn to your personal circumstances. I will just enquire, does anyone need a break and, in particular, any of the offenders need a break at this stage? Yes, all right. I will stand the court down for - I will say ten minutes because with the numbers of people having to come and go, it will not be less than ten minutes. But I will stand the court down for ten minutes. The bail of Mr Huynh and as I have said Mr Verrina, is extended in the meantime. The others are to be removed from the court first. Thank you.
67Yes, Mr Mansoor and Mr Fatho are to be removed from the court first. Sorry and - who have I forgotten? Mr Van. I beg your pardon, Mr Van also.
68(Short adjournment.)
69HER HONOUR: All right, I am sorry, that was much longer than the ten minutes I had hoped. I am still dealing with your circumstances, Mr Aysar Fatho. I was about to turn to your personal circumstances.
70You were aged 23 at the time of this offending and turned 25 last week. I am told that you were born in Iraq, one of six siblings, and that you arrived in Australia as a refugee with your family at about the age of eight. I am told that you had difficulties during your schooling here, and were ultimately expelled from a number of schools and educated only until Year 9. You have some work history, but it has been limited.
71You married at age 20 and have four children, ranging from a few months old to the eldest, aged four.
72I am told that you have a lengthy history of drug use, commencing with marijuana at age 13, and then ice at age 15. Eventually, at age about 20, you also started using Xanax and GHB and cocaine.
73You have a criminal history, commencing in February 2014, when before Heidelberg Magistrates’ Court for several offences, including recklessly causing injury, and trafficking and use of cannabis, and possession of methylamphetamine, you were placed on a Community Correction Order with a number of treatment and rehabilitation conditions.
74Further Court appearances over the next two years included dishonesty offences – noting, in particular here, dealing with property suspected of being proceeds of crime – and for breach of the original Community Correction Order. You received a further Community Correction Order in August 2015, with similar rehabilitative and treatment conditions. You were before courts again for which you were fined in late 2015 and early 2016.
75While your prior criminal offences cover a variety of types of offending, some are clearly related to your own use of drugs, although they include trafficking cannabis, and others of those offences are of dishonesty, with one of violence. Others relate to driving offences. Overall, these do you no credit, but I accept that they are consistent with a person who had dropped out of school early, was mixing in bad company and using drugs. They do not reflect nearly as serious charges as most of those before me now.
76One of the summary charges brought before me is of you committing an indictable offence whilst on bail. I am informed that you were placed on bail in September 2017, and that was in relation to matters of a similar nature to those with which I am dealing here, but for which you are due to go before a Magistrates’ Court, and to plead guilty. That information is relevant to indicate that between the last of the formal prior offences, which was dealt with by a Magistrates’ Court in January 2016, and the offences that occurred for which I sentence you which occurred in the first four months of 2018, there had been some further offending in between. That is also consistent with the submission of your counsel that you had continued to abuse drugs yourself and engage in associated illegal activity.
77It is clear that being on bail did not prevent you from embarking on the principal offending for which I sentence you, that is, your organisational and principal role in the trafficking of a commercial quantity of 1,4-BD.
78The further aspect of relevance from your prior history is that previous orders, such as Community Correction Orders, have not been sufficient to deter you from further offending, nor to resolve the underlying causes of that offending and in particular, your drug abuse. For that reason, what the courts call “specific deterrence” is a relevant sentencing factor for you. That means that the sentence must be stern enough to send the message to you not to repeat such offending.
79I take into account that at the time of the offending for which I sentence you, you were still relatively young at 23 years of age, and you are still only just 25. This was far from your first offending, with not only your formal prior criminal record, but also an entrenched history of using numerous illegal drugs. Nevertheless, at your age, I do not disregard that your potential for rehabilitation is relevant, although with your history and in your circumstances and in light of the seriousness of your role in the offending, rehabilitation will not be the dominant or even one of several important sentencing factors. I have not, however, disregarded it entirely.
80Despite your relative youthfulness at the time of this offending, you were married with three children, and your wife was then pregnant with a fourth child who has since been born. That you did not regard family responsibilities as taking priority over this wide range of offending in which you were engaged, is probably consistent with your perceptions being effected, detrimentally, by the drugs you took. However, it was both dangerous and highly irresponsible, given your family circumstances.
81I am told that due to understanding that realistically you are facing a sentence of imprisonment of some considerable length, you have discussed with your wife that you will not be able to provide support for her or the children for some years to come, and that she should not feel bound to the marriage. This reflects that you have now realised the consequences to your wife and very young children, of your removal from the family circle, as well, of course, as your inability to engage actively in the upbringing of your very young children. I am told that they are brought to visit you in prison regularly, and have been throughout the period since your remand. You are right to expect a considerable further time in prison. Whether you eventually re-join your wife and children as a family, or the extent that you eventually can participate in their lives, will have to be determined in the future, and I cannot make any assessment of that. I do take into account that it is of some concern to you, and one of the worries you have whilst you are serving a prison sentence.
82Since your arrest on 28 April last year, you have remained in custody. I am told that over the course of your time in custody, you have undergone considerable change. First, your incarceration forced detoxification on you from the multiple drugs you had been using. I am told that you detoxified over a fourteen day period, and that you have remained abstinent from such drugs ever since. Drug screens taken since May 2018 confirm all negative results.
83Further, I am told that with the benefit of your thought processes no longer being effected by drugs, and that you are facing the harsh reality of a long prison sentence, you have shown considerable insight into the stupidity and wrongfulness of the conduct and lifestyle in which you were engaging. I have seen certificates of programs you have completed whilst in custody, which address some vocational pathways, but also issues of respectful relationships, self-awareness, and an AOD six hour program.
84I have read a report from Mr Jeffrey Cummins, clinical and forensic psychologist, who assessed you through two video conference interviews in April of this year. Mr Cummins sets out details of what you told him of your memory of your childhood, including leaving Iraq when you were aged about five, some memory of night time bombings, and hearing bullet sounds during the day, and that you and your siblings were sent by taxi to Turkey where you stayed for about six months. You also remembered some attempts to flee Turkey by walking towards the border, but being intercepted, and on each occasion your parents having to pay money to obtain your freedom. The third time, the family was successful in crossing into Greece, where your mother's brothers were already living.
85You said that the six months of living in Turkey was in one bedroom accommodation, and there was no opportunity to attend any schooling. In Greece, there was some schooling available, but because the family was living in very cramped quarters with your mother's brothers, it was not really possible to engage with any schooling. You recall the family having almost nothing in the way of possessions whilst in Greece, and indeed being robbed there.
86From being told of these matters, Mr Cummins thought that you might be suffering some underlying post-traumatic stress disorder, although you said that you had tried to put memories of the times in Iraq, Turkey, and Greece behind you. However, he noted that you told him that you now feel that some of that background is what caused you to start using drugs.
87Mr Cummins did not find you to be suffering any psychotic illness, nor antisocial or other personality disorder. He considered that at the time of the offending, you were suffering poly-substance dependency. He did not diagnose any reactive mental health disorder, such as an adjustment disorder or a major depressive disorder, in response to your arrest or incarceration.
88Mr Cummins said that you did disclose some mild anxiety and depression symptoms. You told him that you had not undertaken any mental health treatment, either in the community before your arrest or whilst in custody. I note that this is notwithstanding that two Community Correction Orders in the past had conditions for mental health treatment, as well as drug treatment, but I cannot resolve whether any was attempted. I understand that some drug treatment was undergone by you on those occasions. Whether you need formal mental health treatment independent of your drug dependency is not clear. There is no evidence of a mental health disorder diagnosed which contributed to your offending.
89Overall, Mr Cummins' opinion was that your offending was probably entirely related to your poly-substance abuse that had developed during your teenage years. He notes how much you describe using over those years, and that you describe that in the twelve months leading up to your arrest, as well as methamphetamine and cannabis, using cocaine, Xanax and GHB. You told him that you had undergone a ten day residential detoxification at Moreland Hall. You thought that was probably when you were aged about 18, although when discharged, you immediately returned to using illicit drugs. You told him that you now think back on that as a lost opportunity, and regret reverting to drug use
90Mr Cummins noted your expressions of remorse, and described you speaking in an apologetic, contrite, regretful and remorseful manner concerning your offending, and that you were highly motivated to make positive use of your time in custody. He felt that whilst that motivation continues, your chances of changing your lifestyle were guardedly favourable. It was clear to him, as indeed it is to me and no doubt everybody else hearing your circumstances, that your future prospects depend very heavily upon you being able to refrain from relapse into substance abuse on your release from prison. If you can be assisted whilst in prison with further programs to give you further insight and relapse prevention techniques, they would, in my view, be of great assistance.
91I have read references from your wife, and from an uncle who has known you all your life. Both describe you as being a happy and outgoing person, supportive of your family members, including siblings, your mother, and your wife and children.
92I find it hard to believe your wife that you were not in trouble back when you were young, because that is not in line with what I am told about the reasons you left school, nor of course in line with your prior criminal history, although not so extensive as to indicate that it occupied your whole life. However, your wife says that you have been part of each other's lives for the last 10 years since high school. It is a sad common feature of cases heard in all courts, that the consequences of an offender's wrongdoing impact very considerably on their families, and that can include, as in your case, a wife and four young children, all under the age of five.
93Both of these references reflect a willingness to continue to support you, and to be part of your life when you are eventually released from prison.
94I have read a letter from you to the court. In it, you state that you are sorry for your actions. You state that, at the time, you were “not in a good place,” were drug affected, hanging around that negative lifestyle. You say you had a gambling addiction, and were under financial stress owing someone a lot of money. You say that you have now realised that you were making bad decisions, and in doing so were putting people at risk. You say that since being in custody you have reflected on and realised that your actions were appalling, and how significantly that has impacted on you being able to see your wife and children, and even missing the birth of your youngest daughter last December as well as your other daughter's first birthday. You expressed yourself as deeply remorseful for all of your actions, and say that you take full responsibility for what you did. You also say that, when released, you want to open a restaurant and be there for your children to make up for the times that will have been lost. You state you know that you can and want to change.
95You were aged 23 at the time of this offending, which is beyond the age regarded as a young offender, although you would still fall into the category of a youthful offender. You have prior Court appearances and apparently were engaging beyond what has been charged in extensive drug abuse.
96I accept that having been in prison for more than a year now, you have been drug free since a couple of weeks after that, and also that you have come to think differently about your life and your responsibilities. Separation from a young family is salutary punishment, but it seems to me that if you were as deeply engaged as it has been described in taking a cocktail of different illegal drugs, and in gambling, owing significant money, your participation in family events, especially concerning your own very young children, probably posed risks to them, of which you were not thinking at the time. It is to be hoped that you will not revert to that way of life again, but only time, and a lot of effort by you to turn your life around, will tell.
97Owing to the seriousness of this offending and your extensive and principal role in it, your relatively young age and prospects for rehabilitation cannot be the most important sentencing purpose when compared, as I have said previously, with general deterrence, community denunciation, and protection of the public.
98However, I have not disregarded that it is ultimately in the community's best interests, as well as in the interest of you and your immediate family, that your potential for rehabilitation not be crushed, and that on your eventual release from custody, you be encouraged to build a stable and constructive life. With that in mind, I have moderated, to a modest degree, the minimum term I will set before you can become eligible for parole. It will be for you to show the Parole Board that your present expressions of a desire and ability to change can be maintained.
99I have already described the sentencing factors I take into account. In light of those, and of course of s.5(2H) of the Sentencing Act, it is clear that no sentence other than one of imprisonment is appropriate in your case.
100I will provide the details of that after I have addressed the situations and circumstances and offending of each of the others I am sentencing today. That means it will be this afternoon.
101I turn now to Mr John Mansoor.
102John Mansoor, you have pleaded guilty to a single charge of trafficking in a commercial quantity of the drug of dependence 1,4-Butanediol. I have already said that the maximum penalty is 25 years' imprisonment and that s.5(2H) of the Sentencing Act makes a sentence of imprisonment mandatory unless an exception is established, and it has not been submitted that an exception applies in your case.
103The charge against you is confined to your involvement in the activities on 28 April 2018, which was the day on which there was planned to be an exchange to replace previously supplied poor quality product with proper 1,4-Butanediol. That exchange was to be between the group or syndicate you were assisting, and the one involving Mr Van and Mr Huynh. You were associated with Aysar Fatho and his group or syndicate.
104By 28 April 2018, you knew that Aysar Fatho was in dispute with those who had purchased product from him in the preceding month or so. That dispute involved the quality of the product, as consumers were complaining. You also knew that Aysar Fatho had obtained eight barrels of genuine or proper quality 1,4-BD, and there was to be an exchange in which 500 litres of the newly obtained genuine substance was to be delivered, and the poor product collected by Aysar Fatho's associates.
105In relation to the activities on 28 April, as far as I can see from the summary of facts in the prosecution opening, your involvement is first mentioned on that day shortly before 4 pm. In that, Mr Huynh told you that what he called his “boys” were going to be there in 25 minutes, and you asked him to give you an hour because Aysar Fatho was having a sleep. A little after 4 pm, you talked again with Mr Huynh on Aysar Fatho's phone, and he talked of buying an extra 400 litres. Shortly afterwards, you talked with Mr Huynh about needing to bring a van to Aysar's house, and there was talk of it being loaded for Mr Huynh and his people.
106Under police surveillance, shortly after 5 pm, you, together with Aymon and Andy Fatho, were observed loading barrels onto a trailer attached to a van at the storage premises at 52 Potter Street, Craigieburn. Each of the three of you ran from police. You personally commenced climbing a fence, but you were caught and arrested at that point.
107A total of 1,402 kilograms of substance containing of 1,4-Butanediol was located in various sizes and types of containers at 52 Potter Street. It does not appear to me that the Crown alleges that you were involved with trafficking that entire quantity; rather, it is alleged that 525 kilograms was to be exchanged that day, and you were participating in that exchange as one of those loading barrels onto a trailer for that exchange. You had also, as I have already said, been part of some conversations that related to that proposed exchange in the hour or more preceding it.
108As a commercial quantity of 1,4-Butanediol is constituted by 2 kilograms of substance containing that chemical, if not for lawful use, it is clear that you were involved in trafficking a large quantity, and taking the 525 kilograms with which it is certainly alleged you were involved, that was more than 260 times the threshold for a commercial quantity, making it a very large quantity indeed.
109I must assess the objective seriousness of the offending and your culpability for your personal role in it. As I have already said, the maximum penalty of 25 years' imprisonment is an objective sign of how very seriously offences of this nature are to be regarded.
110The high quantity, being some hundreds of times the threshold for a commercial quantity, is particularly relevant. However, I take into account that you were clearly not the organiser of the acquisition of this substance, nor of the arrangement for the exchange that day, although you had known enough to engage in some conversation about delivery methods in the preceding hour or so. The charge against you does not cover any involvement with earlier supply or sale of what turned out to be poor quality product. I accept that you were not standing to share in any ultimate profit from these dealings, although it is conceded that you were engaging in this activity for money gain, wanting that money in order to support your own drug addiction.
111I also regard as relevant, although to a much lesser degree, that the arrangement for the exchange, which is the limit of your alleged offending, was not in itself likely to produce any substantial profit. It was to remedy the problem and dispute which had arisen because the product supplied in late March and earlier in April, from which at least Aysar Fatho was intending to profit, had been the subject of complaints, and this was an attempt to remedy that.
112It was conceded by your counsel that the nature of this offence is serious, and that the quantity of the drug involved makes it very serious. I accept that your own role was quite limited in that you were participating only that afternoon, although aware of what had preceded the arrangement, and your role was to assist in the physical loading for delivery of this quantity of the drug in order to fulfil the arrangement that had been reached by others. You were doing this with knowledge of some of the wider aspects of the trafficking of this drug, which had occurred, or been attempted, and in association with others with whom you presumably had some ongoing association.
113I have already said you stood to gain in that you were seeking to earn money to support your own drug habit. That is no excuse, but it is in contrast to a motive of pure greed.
114While this is serious offending, I regard your role as relatively limited and at a relatively low level of personal culpability.
115You pleaded guilty to this charge at what is to be regarded as an early stage. Like the others who are before me here, that was after some negotiations at the committal hearing, and without requiring any witnesses to be cross-examined. You, as do the others here, receive considerable leniency for that, taking into account the utilitarian value of the saving of time and cost and inconvenience of witnesses, your acceptance of responsibility for your involvement, and I take your plea of guilty as a reflection of remorse, particularly as there are other signs of remorse to which I shall refer shortly.
116I shall tell you what your sentence would have been had you not pleaded guilty after I have imposed sentence.
117I turn now to your personal circumstances.
118You are now aged 26, and were 25 at the time of this offending. You were born in Iraq, from where you and your family fled when you were aged about 13. You were one of five children, having two older sisters and two younger brothers. I am told that, generally, you regard your childhood up to about age 10 as being a good and stable one, in which both of your parents were employed in a family business. However, following the commencement of another war situation in Iraq from 2003, the situation for your family changed dramatically. You and your family were exposed to the horrors of that conflict, including witnessing executions, seeing corpses in the street, and you yourself suffered an injury to your ears through being close to a bomb explosion. That has resulted in long term significant loss of hearing for you – in both ears, but more so on one side than the other. Also, your family lost its business, and movements were heavily restricted by safety considerations.
119Your family fled Iraq to Turkey in 2006, where you as the eldest son went with your father often to look for and perform what jobs you could obtain, to try to support the family, often finding yourselves cheated, or even not paid at all. I accept that this was a time of considerable hardship, and that you were not able to engage in proper schooling during that period. Eventually, the family was able to come to Australia in 2009, when you were aged 16. In 2014, you became an Australian citizen.
120Although you commenced schooling in Iraq, your education was significantly disrupted by, first, the instability there, and then the subsequent moves made by you with your family. You had no formal schooling for many years, and when you arrived in Australia, were unable to speak English, although I am told that you could speak at least three other languages fluently. As I have said, you were aged 16 on arrival in Australia. You were apparently considered too old to be placed at an appropriate level grade at school. Instead, you attended six months of VCAL studies. You then undertook an apprenticeship course at TAFE, but were unable to obtain an apprenticeship. I am told that you have had several periods of employment in low skilled positions, including working at a carwash, and at one or more caravan companies. Your last employment was about a year prior to your arrest.
121I am told that you were introduced to drug use – MDMA, cocaine and cannabis – at around the age of 21, and that your use of cannabis quickly escalated to daily. At the time of this offending, you were also using cocaine regularly, and that is an expensive drug to use regularly. I note that the commencement of that drug abuse was a few years later than for many others who come before the courts, and for several of the others with whom you are being sentenced. However, it appears that once started, it became entrenched quickly, and that by the time of this offending, when you were aged 25, you were not working, were not spending much time at home, had at that stage separated from your partner, and that the seeking of money to purchase drugs and mixing with people involved with those activities had become central in your life.
122Drug addiction, as I have already said, is generally no excuse for offending, whether or not that offending is drug related. It can put the offending conduct into some context, in that you were likely to have been acting under the influence of drug associates as your peers, and your judgment generally may have been hindered by the effects of your drug taking. However, in this case, it is submitted that your traumatic background circumstances, and circumstances of hardship throughout your teens, rendered you particularly vulnerable to being introduced to drugs, and that your use of drugs should be a mitigating factor. Viewed that way, your background also rendered you vulnerable to being swept up into the activities of drug using associates. I will return to this issue after discussing the psychological evidence about you.
123You come before the court with no prior criminal history, although I am told that you had been using illegal drugs for some years, and therefore it cannot be said that this was your first and only lapse into illegal conduct. You did not come to police attention for your drug use until these matters, and you are entitled to the benefit in sentencing of being treated as a first time offender, and having, especially at your age, rehabilitation considered as a sentencing factor.
124Unfortunately for you, your arrest for these matters, notwithstanding a lack of any prior criminal history, has resulted in immediate imprisonment, as you have been remanded since your arrest on 28 April last year. That is because of the seriousness of the offending involved, and it has been conceded that that seriousness and the application of s.5(2H) of the Sentencing Act requires a term of imprisonment to be imposed, notwithstanding the mitigatory factors in your circumstances.
125I accept that you have spent the period you have been in custody constructively. First, incarceration forced detoxification on you, and I am told that you have remained drug free, which is now for more than a year, and that you intend to remain so. You have not had the benefit of the type of intensive drug rehabilitation program, including personal counselling, that two of your co-offenders have undergone, as they obtained bail to do so. However, I accept that you have done as much as has been available to you in the prisons where you have been held.
126You have undertaken a considerable number of courses and programs while in custody, of which I have seen certificates. Those include programs relating to drug abuse, and also occupation orientated or vocational courses. I am also told that you are currently the yard billet, which I accept reflects that you are engaging in work, and have been for some time, and that you have been placed in the billet position as you are regarded as having been behaving responsibly and have been appropriate to take some responsibility for other prisoners.
127I have been told, and accept, that the hearing loss from which you still suffer, as a result of a car bomb explosion when you were in Iraq, has led to certain instances of difficulty for you while in prison, because your inability to hear has been misinterpreted. I accept that that could cause real difficulty on occasions, depending on the people with whom you are interacting, whether they are prison officers or fellow prisoners. I accept that to this extent, this physical impairment is likely to have made, and to continue throughout your imprisonment to make, the experience of imprisonment more onerous for you. I have taken that as a factor requiring some modest moderation of your sentence.
128I am told that you are visited regularly by your family, and you are also visited by the partner with whom you had broken up in the period before this offending, but who has resumed contact with you. I am told that you would like to re-establish a long term relationship with her on your release. The prospects of that of course remain to be worked out with her.
129You were interviewed for a psychological assessment by Mr Warren Simmonds in April of this year, while you were at Ravenhall Correctional Centre. Mr Simmonds took a personal history from you, noting that your experiences in Iraq, once war conditions started, and your exposure to deaths, traumatic scenes, and indeed suffering the hearing loss from your proximity to an explosion, had caused you to experience intrusive memories of those experiences, with episodes of hyper-arousal and hyper-vigilance. His view was that you were clearly experiencing symptoms of post-traumatic stress disorder when living in Iraq, noting, however, that you felt they had become less of an issue in time, especially since being in Australia and you have looked forward in your life here. However, he noted that you reported a return of those intrusive memories over the few months before he saw you, which you felt had been triggered by a suicide in the unit where you were in prison.
130He considered that the symptoms you described as experiencing were consistent with a diagnosis of post-traumatic stress disorder while living in Iraq, potentially for some time afterwards, and given that what you have reported to him, he considered that while you would not always meet the criteria for that disorder on an ongoing basis, particular stressors in your life may lead to some reactivation or aggravation of that condition, at least temporarily.
131Mr Simmonds took a history of you being introduced to drugs upon going to nightclubs, from about the age of 21. I will not repeat the details of those I have already mentioned. You told him that after a few months, you tired of the drugs such as ecstasy and MDMA and at one stage Lyrica, but you commenced using cocaine, at first intermittently, but it became more regular, and you found you needed more to have a good time. You estimated you were using at 30 per cent of the time. You had also been introduced to smoking cannabis, which you apparently did daily from the start, becoming dependent on it, which you did not realise until about a year later. You did notice that you started to become aggressive if you did not have that drug. You were smoking it daily in company with other people, who, like you, had dropped out of employment, and, in addition, you were using cocaine primarily on weekends.
132You told Mr Simmonds you were not a big drinker of alcohol in the period leading up to this offending, and apparently had recognised earlier that you did stupid things when you were drinking. Your cannabis use had become very considerable, and, with the cocaine, your drug use was very expensive, and you had moved into company where others like you were looking to make money to support the ongoing cost of personal drug use.
133Mr Simmonds took a more extensive history of employment by you than I had been given, including how you worked with your father during the period before leaving Iraq, and in Turkey. I accept that those times, together with your attempts to get work in Australia, and being prepared to undertake various unskilled jobs to do so, as well as your current experience as a billet, show that you have the capacity to work hard, if not undermined by drug use.
134Mr Simmonds considers that you would have met the criteria for cannabis use disorder, and that experiences in your childhood left you vulnerable to substance use, which was then influenced further by peers, and that you drifted into what you perceived as normal behaviour in the Australian culture. You have, he notes, undertaken drug courses available to you in prison and were awaiting entry into a more intensive one when he saw you. He notes that you would benefit from referral for drug and alcohol counselling, with a focus on increasing self-efficacy, harm minimisation, and relapse prevention strategies.
135Mr Simmonds found no clear evidence of a major psychiatric disorder when he assessed you, but he noted that you may have found it difficult to disclose the issues from a cultural point of view. He did not find signs of antisocial personality traits, and thought you had a strong ethos of work and faith modelled by your parents. His view was that, provided you stay clear of further drug abuse, the likelihood of further offending would be reduced.
136You wrote a letter, addressed to me, which also addresses your various family members, expressing your understanding of the impact on each of them of your drug abuse, and of you now being in prison for this offending. You expressed sincere apology to the court, and the community, and to each of these family members. On reading this, I am satisfied that you have some real insight now into the harm done by drugs to the community in general and to many individuals in it. I accept that you have come to this realisation yourself, and on seeing others while you have been in custody, and you acknowledge that your involvement in the offence for which you face sentence was the result of stupid decisions which had the potential to do harm and damage to the community.
137You also express your hopes and resolve to lead a responsible life, and set about righting what you have done to family members on your release from prison. I accept that what you have written to this court, and how you described yourself and your actions to Mr Simmonds, demonstrates genuine insight into what brought you to the position you are in, and the harm you were doing yourself and your family and potentially to the community.
138In light of the hardships and traumatic experiences you had through your teens, and of your insight since detoxifying which I find to be genuine into the causes and impact of your drug taking and the offending itself, and taking into account Mr Simmonds' views, I am prepared to find that your unusually difficult background throughout your teens, coupled with your drug associated peers, did render you more vulnerable to succumb to use of drugs than for someone growing up without those particular hardships and experiences.
139I do not regard your drug taking as strongly mitigatory, but I have modified to a modest degree your sentence to take into account that finding.
140You are, as I have said already, still relatively youthful, aged 26, and your prospects of rehabilitation are relevant to sentencing principles. With no prior convictions, and the responsible attitude you have taken whilst in prison, from addressing your drug addiction, undertaking various programs both vocational and for the drug abuse, and becoming a yard billet, I am satisfied that your prospects of rehabilitation are reasonably good.
141There are no intractable underlying psychiatric conditions diagnosed. The key to you being able to build a stable and responsible, and hopefully happy, life for yourself in the future is that you continue to address your drug abuse issues, and remain firm in your resolve to stay drug free on your release from prison.
142Another positive factor in assessing your rehabilitation prospects is the ongoing support of your parents and your siblings, as expressed in letters which I have read, albeit those were written in English by your younger brother so using English expressions which I do not think would have been used by your parents in English. That does not reduce what I take to have been genuinely felt sentiments that were expressed in those letters.
143It was not submitted that any sentence other than one of imprisonment with a non-parole period would be appropriate to meet sentencing requirements in your situation. It is the length of that sentence and the non-parole period to be set which is the subject of submissions for leniency.
144In considering that, I have also taken into account some other sentences which were drawn to my attention. As I have said, they have to be taken in light of the impact of Court of Appeal decisions to the effect that sentences for the trafficking of a commercial quantity of a drug of dependence are to be viewed as higher now than they were before the case of Gregory.[7]
[7] [2017] VSCA 151
145Of the cases drawn to my attention, the closest for comparative purposes does seem to be that of Bchinnati,[8] a decision of another judge in this court. I note that that offender was older than you and had extensive prior convictions, but his role was regarded as limited to the loading on two occasions on the one day of containers of the same drug as you were involved with here, 1,4-Butenediol. The overall amount there was more than the total amount found here, and more than the amount were engaging in loading for an exchange. His sentence was 14 months' imprisonment.
[8]DPP v Bchinnati [2018] VCC 372
146I have, as I have said, taken into account the sentencing factors of general deterrence, community denunciation, and, to a lesser extent in light of your involvement, protection of the public. Without a prior criminal record, specific deterrence is not as higher a requirement in this case, although clearly a sentence must discourage you from resuming drug use, which might lead you into similar offending.
147I have explained the other ways I have modified the sentence involved. I will tell you the details of your sentence after I have explained my reasons for sentencing the others today and that will be this afternoon.
148Now, given the time, I was going to move next to Mr Huynh. I think it might be desirable that - there is a lot to listen to and there are a lot of people sitting having to listen to all of this. What I think I will do is call on the lunch break earlier and resume at 2 o'clock with the next two of the offenders.
149That being so, I extend the bail of Mr Huynh and Mr Verrina till 2 pm and ask that the other three be taken from the courtroom at this stage please.
LUNCHEON ADJOURNMENT
150HER HONOUR: All right before I proceed, I have reached the conclusion in the last few minutes that I am not going to be able to even complete the other two matters today. I will proceed with the next one Mr Huynh, but if I proceed with Mr Van, it is going to be after 5 o'clock before I am actually imposing the individual sentences. For some of them, that means transportation issues back into custody, and the day is a very long and detailed day. I am sorry.
151This is not ideal, but I had realised that the fifth one would not fit, and I am sorry to put it as bluntly as that, but all of these offenders have complicated situations that have to be explained. I know there is a lot of repetition in what I have had to say, but I have to go through the process of the various considerations for each of them individually and I think in the circumstances - what I will do is continue with the next one and then impose the sentences on - it will be Aysar Fatho, John Mansoor and Ngoc Huynh today, and I have tomorrow available to proceed with the other two then, unless there is a particular difficulty. I think I asked you earlier Mr Cole and there is no particular difficulty.
152MR COLE: No. Although I might - if I might ask now Your Honour just because I don't want to ask later when Your Honour's doing sentencing (indistinct words).
153HER HONOUR: yes.
154MR COLE: Just in terms of tomorrow, does Your Honour have a reasonable estimate of how long the two will take? I've just had to organise something else. I can be here, I just wanted to - safely after lunch I'm guessing. Put the other thing until after lunch, but we might be right for ‑ ‑ ‑
155HER HONOUR: I think that would - that should be safe, barring ‑ ‑ ‑
156MR COLE: As I said, Your Honour, ‑ ‑ ‑
157HER HONOUR: ‑ ‑ ‑ other problems ‑ ‑ ‑
158MR COLE: That's just the best guess in terms of the morning.
159HER HONOUR: ‑ ‑ ‑ I have. It's my best estimate. They vary a bit in length.
160MR COLE: Yes.
161HER HONOUR: I don't think your client's one is quite as long as some of the others, but to go through all the considerations - I think it will comfortably finish in the morning.
162MR COLE: Thank you, Your Honour. As I said, I prefer to ask now even though ‑ ‑ ‑
163HER HONOUR: That's the best I can do now. All right, now Mr Kelly in respect ‑ ‑ ‑
164MR COLE: ‑ ‑ ‑ I'm interrupting now, but (indistinct words).
165HER HONOUR: That's just been announced for your client and I realise you haven't had time to talk to him. I'm also very aware that he has family members who reside in Queensland.
166MR KELLY: Queensland that have come down and ‑ ‑ ‑
167HER HONOUR: And they may be here rather - well I'm not sure. I have a courtroom full of people and I'm not ‑ ‑ ‑
168MR KELLY: Yes.
169HER HONOUR: ‑ ‑ ‑ aware who's here for whom.
170MR KELLY: No his family are here from Queensland. He would of course - he's in custody. Would of course prefer to have his matter dealt with if it's at all possible.
171HER HONOUR: I don't think it is. I think I've just got to be realistic as to where I stand with them and it will be first thing tomorrow morning, unless that's not possible for you or someone to be here on his behalf.
172MR KELLY: No we will certainly be able to accommodate that.
173HER HONOUR: All right, I do apologise for it and particularly I was aware that he has family from Queensland, but ‑ ‑ ‑
174MR KELLY: Yes.
175HER HONOUR: ‑ ‑ ‑ if I start interposing his now it gets - well I'm not going to do it.
176MR KELLY: No.
177HER HONOUR: I really think I have to proceed as I'd planned to go.
178MR KELLY: It's a matter for Your Honour.
179HER HONOUR: All right. Do you want a couple of minutes to explain that to your - to talk to your client about that or to talk to any of his family before I proceed?
180MR KELLY: We did discuss this possibility earlier in the day and I got his instructions then, but now that it's become a concrete or nearly a concrete thing, maybe I ‑ ‑ ‑
181HER HONOUR: I'm afraid - what I've worked out is that I'd have to take a break after Mr Huynh, even keeping that confined to the ten minutes that is the minimum necessary and there are some twitches I inevitably end up making, but it's going to be well after 5 before I'm imposing the sentences on your client or others, and that will take time and time to enter, and I just think it becomes too difficult and too problematic at that stage of the day. So, I do apologise to all concerned, but I could only make the best efforts, and I was aware yesterday that it was really looking as if they couldn't all be completed today. At one stage, I had Ms Dwyer ask - still urging me to fit her client ‑ ‑ ‑
182MR KELLY: As well.
183HER HONOUR: ‑ ‑ ‑ in today too. But his matter has been adjourned off till August, and I am not suggesting that these others be adjourned off till then. But I have to keep all the parity issues in mind, and have been doing so all the way along, or trying to. All right.
184MR KELLY: As Your Honour pleases.
185HER HONOUR: I will call a break after I have done the reasons for Mr Huynh and then everybody has that break before I impose the actual three sentences that I will today. All right, I am up to you Mr Huynh.
186You have pleaded guilty to two charges of trafficking in a drug of dependence, both relating to 1,4-BD. I am just going to pause. I am echoing back at myself. Has the sound system changed? Can you hear that? All right, I will have to persevere. I am not quite sure whether it is the recording or what, but I am hearing myself in my left ear which is a bit distracting. If I talk like this - I think it is an area out - the far side of that bit of equipment. Is it coming out of somewhere there? Those speakers? All right, I will return to where I was and ignore myself in my left ear throughout. I am sorry Mr Huynh, I will start again in respect of you.
187Ngoc Huynh, you have pleaded guilty to two charges of trafficking in a drug of dependence, both relating to 1,4-Butanediol, and one charge of conspiring with Aysar Fatho and others to traffic in not less than a commercial quantity of that drug of dependence. You have also pleaded guilty to related summary charges, which you agreed to have heard in this court. Those are a charge of dealing with property suspected of being the proceeds of crime, and one of possessing cartridge ammunition without a permit.
188The maximum penalty for each charge of trafficking is 15 years imprisonment, and for conspiracy to traffic in a commercial quantity, it is 25 years imprisonment. Those maximum penalties as I have been saying in respect of each of the other offenders, reflect how objectively very seriously offences of this nature are regarded by Parliament on behalf of the community. The maximum penalty for each summary charge is two years imprisonment.
189However, as none of the charges against you is a Category 2 charge, for the purposes of s.5(2H) of the Sentencing Act, you do not fall within that provision which would otherwise require a sentence of imprisonment, not being a combination sentence with a Community Correction Order, unless an exception is established. That means that I shall be applying general sentencing considerations to your case without that constraint. I note that the prosecution's submission was that general sentencing principles should lead to the imposition of a sentence of imprisonment on you, not being a combination sentence, and notwithstanding that s.5(2H) does not apply.
190The charges against you are confined to specific periods of your involvement in April 2018. Charge 1 is based on you purchasing and taking possession, between 7 and 9 April 2018, of an unknown quantity of 1,4-BD from Aysar Fatho. In the preceding two days, you had conversations with Aysar Fatho, in which he told you he had another supply of this drug, and you said you wanted it frozen to guarantee its quality, and the next day told him you wanted a refund for the bad quality 1,4-BD, but would prefer the product itself.
380It is not alleged that you were head of your syndicate or group. Indeed, the prosecution concedes that there is no evidence on the factual summary to enable any conclusion to be drawn as to your or Mr Huynh's relative positions or seniority in the group, or syndicate of which you were both part. The prosecution points out that you used the expression “my boys” when arranging for people to come to collect a delivery, or make a payment. Whether that meant associates, or people actually answering to you, is not possible for me to determine. But I do conclude that you were not subordinate to at least those other people.
381From the factual summary, it is clear that you conducted some phone calls with Mr Fatho for Charge 1, in ordering product or negotiating price and, further, that you conveyed complaints about quality, and discussed delivery arrangements. You were well aware of, and participated in, some conversations with Aysar Fatho in relation to arranging the intended exchange on 28 April to receive proper 1,4-Butanediol to replace the poor quality product. I am unable to find, as I have said, whether or not you were directing the people you call your “boys,” but I am satisfied that your role was not wholly subordinate.
382I cannot determine as between you and Mr Huynh whether one was more senior in the group than the other, so I have treated you and him as of the same relative seniority amongst your group.
383It is not suggested that you stood to share in profits personally from your involvement, but, ultimately, your involvement was for money because you, as with most of your co-offenders, sought to earn money to support your own drug habit. I have said for others, and repeat for you, that the fact of an offender having their own drug abuse problem, and being motivated into offending to support the expense of that, will not generally be an excuse, and it will only be mitigatory in very limited circumstances. However, it can place the offending in context, and is not aggravated by the motive being purely for personal greed. Although your personal history includes a traumatic event and some psychiatric instability, which I shall discuss later, I am not satisfied that your drug abuse history can be regarded as mitigatory in your case.
384You were arrested on 7 May 2018 and remanded in custody until you obtained bail on 14 June last year. That was directly to a residential rehabilitation program, to which I will refer shortly, and it was facilitated through a drug and alcohol counsellor, Ms Amanda Brown, with whom you had previously attended some rehabilitation. I will turn to details of that later.
385You pleaded guilty to these charges in November 2018 at what is accepted by the prosecution to be a reasonably early opportunity. That was after negotiations at the committal hearing, which were clearly extensive for you and for your co-offenders, and like the co-offenders here whom I have sentenced, you did not require witnesses to be cross-examined. You are entitled to some leniency for that, that is, for your pleas of guilty. It has had the utilitarian value of saving the community the time and cost of disputed hearings, and witnesses the inconvenience of having to give evidence. It also reflects that you, like those of your co-offenders here, have taken responsibility for your offending, and it reflects remorse, which you have also expressed in some other ways. I shall tell you when I have imposed your sentence, what it would have been had you not pleaded guilty.
386I turn now to your personal circumstances.
387You are now aged 25. You were 24 at the time of the offending. You were born in Melbourne to Vietnamese parents. Your parents had each escaped Vietnam, but spent many years in camps in other countries before being able to come to Australia. You and your two brothers were born here. You have expressed your appreciation that your parents sought to bring you up well, and that you and your siblings are lucky to have had the opportunity to grow up in Australia. They all now live in Queensland, where they run a business. I assume a number are still in court today to support you.
388You lived in the St Albans area until you were about 14, when your parents moved the family because they were concerned about some aspects of the community there. However, I am told that on that move, you felt uprooted from friends and school and that you did not settle well at the new school or establish a peer group as you had enjoyed previously. I am told that you were exposed to more people in the new area who used drugs than you had been in the past. I am also told there was some disruption because the High School you were attending in Year 12 closed halfway through the school year, and you had to move school again.
389You moved to a school in Bundoora, which also offered training in automotive mechanics, which you undertook, intending to pursue motor mechanics as your future occupation. However, that aim was interrupted by a tragic and traumatic incident when you were still aged 17. Apparently you and some friends visited another friend, all of you doing the same mechanics course. You found that other friend crushed underneath a car he had been working on. The experience of finding him, and trying to free and resuscitate him, unsuccessfully, was understandably very traumatic for you, and I accept that that experience put an end to your ambition to become a mechanic, and also caused you ongoing distress or disturbance.
390Meanwhile, during your Year 9 at school, you had met and become close to another student named Casey Nguyen, who describes herself in a long and fulsome letter to the Court as your partner. She also describes the history of your relationship over some ten years, being “a lot of breakups and makeups.” At one stage you travelled together, but it is unclear to me whether that was while you were still at school or subsequently.
391I gather that while still at school, she became pregnant, but by then you had broken up, and she subsequently suffered a miscarriage. I am told that you attribute your use of methylamphetamine, or at least its dramatic increase, as being a reaction to your distress that Casey suffered that miscarriage.
392You then suffered a severe psychotic episode, such that you were admitted as an inpatient to a psychiatric ward at the Northern Hospital, where you were treated for a number of weeks. That was said, at the time, to be a drug related psychotic episode, and there has been mention that you may have been told there was a diagnosis of bipolar disorder. However, the hospital records have not been obtained, and Mr Michael Crewdson, who examined you a couple of months ago, has some doubts about that diagnosis, which I will discuss shortly.
393I am told you were still in your teens at that stage, and that this was towards the end of 2011. On discharge from that hospital, I am told that you resumed using drugs – cannabis, methylamphetamine, and cocaine – although, I note that a history subsequently taken from you by Ms Amanda Brown was to the effect that you remained drug free for about twelve months after that discharge. I am not in a position to clarify that.
394You had been visited while in the Northern Hospital by Casey Nguyen, although the two of you were no longer together. She wanted to support you through your mental health illness, but it was not until 2013 that you apparently reached out to her to reconnect, and the two of you reunited and reformed your relationship. That was at first very happy, and you had a daughter together, who is now aged five.
395Ms Nguyen had started a university course before the birth of your daughter, and returned to and completed that Bachelor of Health Science Degree at Monash University afterwards. She completed it at the end of 2017, and she says that when you saw how proud her family were of her achieving that, you decided to enrol in tertiary studies to make your family proud of you. She writes that you enrolled in a Diploma of Business at RMIT in February 2018, and successfully completed the first unit in the first half of that first semester. I note that this must have been around the time of the offending for which I am to sentence you. I find it difficult to accept that you were really committed to completing this course at that time.
396You were arrested and remanded into custody on 7 May 2018, and as I have said, did not obtain bail until mid-June. Casey says that you had intended after your release from rehabilitation to re-enrol, but decided not to do so awaiting the outcome of this case.
397Ms Nguyen and your daughter now live in the same household as your parents and brothers in Queensland, and they are part of your family. They were all in Queensland at the time you were arrested for these charges, but Casey says they returned to Melbourne after your arrest in May 2018 to support you. She writes that you and she had been trying to have further children without success, until she became pregnant, presumably when you were on bail late last year, and that baby is due this September. Your being in prison at this time is clearly an extra strain on her. She has continued to work to make ends meet, supporting herself and your daughter, who started school this year. She does have the support of your other family to assist her, for which she is grateful.
398Apparently Casey herself is not a user of drugs and never has approved of you doing so. Indeed it is your drug use and involvement in criminal activity that had led to you being in Melbourne alone, while she lived with your daughter in Queensland at the time of this offending. I am told that you were living with her and your daughter in Melbourne until November 2017. I take it that by the time of your offending in March and April 2018, you were still in Melbourne, but they were not, or at least not living with you.
399You obtained bail, as I have said, on 14 June last year, on condition that you enter a residential rehabilitation program at the Hader Clinic. You had spent 38 or 39 days in custody until then. You remained in that program until December last year, and after discharge from it, your bail was varied for you to live at your family's Melbourne house. You continued attending AA and NA meetings at least twice a week, and also were attending counselling with Ms Amanda Brown, a drug and alcohol counsellor at the Millswyn Clinic, and she says you had made considerable progress in addressing your addiction and psychological health. Your family observed you to be more attentive and focused on rekindling your relationship with your partner.
400However, you were arrested in late April of this year for matters that you intend to dispute. You were remanded in custody on those and as a result, I was asked on 1 May of this year to revoke bail on the current matters, which I did. Your pre-sentence detention being the combination of the period after your initial arrest until you were released on bail, and then from when I revoked bail up to today, totals 111 days, and that will count towards your sentence.
401You have a criminal history commencing in 2012 before the Children's Court. The matters were not as serious as those that bring you before the court here, but they commence with driving offences, including reckless conduct endangering serious injury. For the first offences you received a good behaviour bond. Some months later, you were before an adult court on further charges including possession of drugs, recklessly causing injury and attempting to obtain financial advantage by deception. For those you were placed on a Community Correction Order.
402During 2014, you were dealt with for contravening that Community Correction Order, with further drug related offending, and the order was varied including treatment and rehabilitation conditions.
403In 2016, you were dealt with for offences including trafficking methylamphetamine, and possession of firearms and ammunition, and you served a sentence of 200 days imprisonment, followed by another Community Correction Order.
404I accept that an ongoing drug habit, together with mental health instability, was most likely connected with this offending, but it would appear that the shock of some months imprisonment in 2016, and the rehabilitative and therapeutic aspects of Community Correction Orders, had not been sufficient to remove you from use of drugs or criminally connected behaviour. In light of this prior history, specific deterrence must be a factor in your sentencing – that is, to get the message through to you by stern punishment to try to deter you from further offending.
405I was presented with evidence as to your considerable attempts to address your drug addiction over the years, and also what mental health problems may have contributed to it. It seems that in January 2016, when remanded in custody for other matters, quite possibly those I have referred to as having been dealt with in the Magistrates’ Court that April, you were assessed by Ms Amanda Brown, a drug and alcohol counsellor. As a result, you were bailed to undertake a long term rehabilitation program while living in the community with your family. According to Ms Brown, you engaged in that program, and in counselling with her, enthusiastically, and with considerable success. She says you remained drug free for the eight months of the program and she believed for longer.
406In March 2018, she was asked to engage with you again in treatment, as you had relapsed into drug use. At that time you told her that cannabis was your main drug of choice. It is not clear to me whether any treatment did occur at that stage, and quite possibly it did not. As the offending for which I sentence you occurred on 20 March and between 23 March and 28 April, if there was treatment underway, it was not deterring you from engaging in the drug trafficking conduct for which I am to sentence you.
407You had been arrested in March 2018, and I infer that was when contact was made again with Ms Brown. You were apparently arrested then in respect of an alleged affray which I am told had occurred in January of that year. You were bailed on a date in March 2018, and it is your breach of that bail by the offending for which I sentence you that is the subject of the summary charge against you of committing an indictable offence while on bail.
408It would seem that the offending for which I am sentencing you followed almost immediately after that grant of bail, and continued over the following five weeks or so. Whether or not you had refrained from drug use during that time, it is clear that you did not refrain from criminal offending which, moreover, was of a nature that facilitated and enabled drug use by others.
409Ms Brown was asked to assess you again in May 2018, when you were remanded for the offences that are now before me. It was her view that you were suitable for a further rehabilitation program, but this time a residential program because the previous non-custodial one had been tried and you had not sustained your abstinence from drugs.
410As I have already said, you were released on bail on 14 June 2018 into the residential program of the Hader Clinic in Geelong, where you undertook the 90 day primary program of intense highly structured and fully supervised treatment. Following that, you entered the secondary care program where more independence and personal responsibilities were allowed, but still with daily programs and individual therapy sessions, as well as daily attendance at NA meetings and rostered work assignments, with regular psychiatric and medication review. Apart from cannabinoids being present on a screen taken only six days after your entry to that clinic, all further drug screens were negative.
411You were discharged after completing successfully that 180 day rehabilitation program, in mid-December 2018, and your bail was varied to allow you to live in the community. You then resumed consultations with Ms Brown, and according to her report and the oral evidence she gave before me, you continued regular attendance at NA and AA meetings, weekly or fortnightly attendance at counselling appointments with her, regular drug screens which were clear up to the last one taken under her supervision which was in mid-April this year.
412She believed you were positive and future focused and had learnt much through the rehabilitation process about your underlying feelings of inadequacy and low self-esteem and how to counter those, making you more confident in yourself whilst still acknowledging your mistakes. She believes you had been brought to realise how you had become self-centred and hurt people, particularly your partner and your family, because of your addiction.
413Ms Brown acknowledged that you had relapsed in the past, and said that experience shows that those heavily addicted to drugs can take many attempts before they finally succeed in avoiding relapse. I accept that that is acknowledged experience. I accept you are still young, with an extensive history with substance abuse, and you have made a concerted effort on this opportunity, and she says you have expressed your gratitude to her for the support and guidance along the way. She believes that you are honest about your relapses and open to continuing to build on your recovery gains. Ms Brown last saw you in April, before you were arrested on other charges for which you are still remanded.
414I also read a report and heard oral evidence from Mr Michael Crewdson, a clinical and forensic psychologist who was asked to provide a psychological assessment and opinion of you. He had interviewed you twice by video link and once in person, whilst you have been in custody this year. He also had telephone conversations with your partner and with your mother. He found you to be pleasant, polite and cooperative. He said you were finding incarceration difficult and you missed contact with your child and partner.
415It was his view that you have a somewhat complex psychological condition, for which he has made a tentative diagnosis only. He calls it “cyclothymic,” that is, ups and downs in mood level where there will be interacting levels of anxiety that can be quite extreme and dysthymic, rather than a depressive component. He distinguishes that from bipolar affective disorder, due to the frequency of the alterations in your mood. He believes yours is a reactive situation of the relevant cyclothymic disorder. He says you are quite volatile, have clearly misused drugs, and can become quite angry quite quickly.
416He believed it was the context of a peer association that had led you to finance your drug needs and other social needs in an inappropriate criminal way. When you saw him, the substance abuse was in remission. Mr Crewdson thought that if you got more insight into what actually happens to you, you might understand that drug use will only exacerbate such a problem.
417He had not seen the Northern Hospital file, but noted that you described presenting there, some two weeks after you said that you had suspended drug use at that stage, so he thought it could not be said to be drug induced presentation. He also thought you would not have been treated there for as long, had it been a drug-induced psychosis, because once the drugs are removed, the psychotic state goes. He did not agree with a diagnosis of bipolar affective disorder, which he says you were told had been given at that stage. His view is that it is slightly different from that, but nonetheless, you do have a psychological vulnerability that needs attention. There did not appear to have been a psychiatric diagnosis at the Hader Clinic, although formally you were admitted there under the supervision of a psychiatrist.
418Mr Crewdson was asked the effect of you self-treating by taking methylamphetamine or cannabis, and said that “[n]obody makes good decisions when their brain's taken over by other substances regardless of the background. Decisions are not well made when people are effected by alcohol or drug abuse.” He noted that you appeared to have done well after the 180 days at the Hader Clinic, and following that with firm controls in place, including Ms Brown as your counsellor. He regarded as a strong protective factor against your relapsing into criminal behaviour, that you are not unintelligent, so are capable of looking at things. The real protection is the cohesion of your family group – your parents and siblings and the support of your partner and your daughter. Having interviewed your partner more than once, he felt she was strong and you would be on a pretty short lead when you return to live with her in the community.
419Mr Crewdson described your symptoms, but agreed that he had not made a formal diagnosis. He had made a provisional tentative one on the best information he had, that is of cyclothymic disorder, with symptoms of anxiety and depressive or dysthymic mood changes in a rapidly fluctuating cyclical pattern, where the presentation was confounded by substance abuse. He accepted that the substance abuse is a condition now in remission.
420I am told that you were arrested in late April this year on new charges, which I am told are irrelevant, as you intend to plead not guilty to them. They apparently relate to alleged further drug trafficking. As you intend to plead not guilty to those matters, I make no assumption that there has been any further offending. However, it seems that your current situation is inevitably complicated by those charges and further, you have not been dealt with for the charge of affray for which you were on bail at the time of the drug trafficking for which I am sentencing you.
421I have taken into account as mitigating factors that you pleaded guilty to these charges at a reasonably early stage, that you have a supportive and responsible family and partner, and a young child whom you are anxious to keep in touch with and are missing, and an as yet, unborn baby. I take into account that your absence from that family unit is weighing on you, as it no doubt is on them. It would appear that were you in the community and unable to leave Victoria, they might well return to live with you in Victoria for a period, although it seems to me that your father's health and the wishes of the rest of the family mean that they intend to live longer term in Queensland.
422I take into account that at age 25, you are still young enough that your rehabilitation should be a relevant sentencing factor, as ultimately it is in the community's interests that someone in your position reform and establish himself in a stable and responsible lifestyle. I take into account that you have shown genuine application to your rehabilitation through the intensive residential program you completed in the second half of last year, and ongoing attendance on Ms Brown earlier this year, with positive results until you were taken into custody.
423There are of course similarities between your circumstances and those of Mr Huynh, both in the extent of your roles in the offending, and in your having through Ms Brown's recommendations, undergone an intensive residential rehabilitation program, and then come under her for ongoing supervision of your rehabilitation.
424I have carefully considered parity principles between you and Mr Huynh, as well as between you and all of the others whom I am sentencing for these events, but those with Mr Huynh are obviously the closest. I have ultimately assessed your role and culpability for the offending in the drug trafficking as to be regarded as equivalent to that of Mr Huynh in its degree of seriousness. In contrast to Mr Huynh, however, there are some matters that put you at a disadvantage compared with mitigating factors in his situation. You do have a criminal history and further you were on bail at the time of this offending, which is an aggravating factor, although for a different type of offending.
425Although you have been taken back into custody, there is nothing to indicate that you have relapsed into drug use, as the last screens before you went into custody were clear. I therefore accept that you have tried to maintain your abstinence from drugs, and regard the rehabilitation program, so far as it keeps you away from drugs, as having been successful so far. However, you have a history of relapsing in the past after what was seemingly successful rehabilitation, and that is in contrast to Mr Huynh who, without a criminal history, or any other formal attempt to rehabilitate from drug addiction, is on his first opportunity and still continuing in it. For that reason, you cannot call upon the fact of it being the first time, which was in his favour. I do not disregard that it does take some people more than one attempt, but in contrast to Mr Huynh, you are at that disadvantage.
426It seems to be conceded that you must be sentenced to a term of imprisonment and probably because of being back in custody since late April, it was not suggested that a Community Correction Order should be considered in combination with some further imprisonment. I take that to be acknowledgement of your current situation in reality.
427I have taken into account, as I have said, that the residential rehabilitation program you did, appears to have been approached by you with application and some success. I also take into account that it was of a nature that imposed strict confines on your movements and activities, starting with an initial month without even access to mobile phones, and for the first 90 days highly disciplined and supervised, followed by a further 90 days still in residential environment and still heavily regulated with daily activities and therapy. Whilst not actual imprisonment and not able to be credited directly as pre-sentence detention, I have moderated your sentence to take into account that for that - near six months, you were supervised and restricted from going about your choice of daily activities.[13]
[13]Akoka v R [2017] VSCA 214
428You engaged well, as I have said, with apparent firm wish to succeed in that program. Hopefully being a little older and wiser than you were when you tackled a non-residential program in 2016, you will have the motivation and more application to continue to remain abstinent from drugs. The motivation of returning to your partner and child, although she was born already at the time, but also to the as yet unborn second child, should provide you with further determination to maintain the focus to remain drug free, as you apparently did over the first four months under the supervision of Ms Brown.
429Taking into account the nature and seriousness of the offending, that you have a prior criminal history and that you have relapsed in the past after rehabilitation efforts, and also that your rehabilitation with Ms Brown has now been interrupted again anyway by your arrest on other matters, I do not give as much weight to your rehabilitation as a sentencing purpose, as I did for Mr Huynh, although for reasons I have already explained, I do regard it as still having some significance in your case.
430The most important sentencing purpose for offending of this nature must be general deterrence, and the community's denunciation of offending in the nature of drug trafficking. As I have said, I also take into account specific deterrence as needed in this case, and also have taken account, but to a lesser degree, the value of assisting your rehabilitation. In all of the circumstances, I am satisfied that no other sentence than further imprisonment would be adequate to meet sentencing requirements in your case. For the combination of reasons I have already described, I intend to set a head sentence and non-parole period to try to encourage your continued motivation to reform your life, and to avoid making similar mistakes in the future. Would you stand now please?
431James Van, I sentence you as follows. On Charge 1 of trafficking in a drug of dependence, you are convicted and sentenced to fifteen months imprisonment. On Charge 2 of conspiring to traffic in a commercial quantity of a drug of dependence, you are convicted and sentenced to thirty months, that is two and a half years imprisonment. As the prosecution conceded, it is appropriate that Charge 1 be served wholly concurrently with Charge 2.
432On the summary charge of committing an indictable offence whilst on bail, I impose a sentence of three months’ imprisonment.[14] Because it occurred very shortly after you were bailed, admittedly for an offence of a different nature, I consider that there should be some modest cumulation. I direct that one month of this sentence be served cumulatively on the other sentences I have imposed, that is the sentences on the indictment.[15]
[14] Amended to 2 months. See paragraph 464 of this Sentence.
[15] Cumulation removed. See paragraph 464 of this Sentence.
433That means that overall, the total sentence is thirty-one months imprisonment.[16]
[16] Amended to 30 months. See paragraph 464 of this Sentence.
434I set a minimum term before you could be eligible for parole of eighteen months imprisonment. I declare 111 days of pre-sentence detention as reckoned served and direct that that be noted in court records.
435In your case there is also some artificiality, not as much as in Mr Huynh's case, but some artificiality because had you not pleaded guilty and disputed these charges, I think it is doubtful that you would have undertaken or at least with as much application, the residential program for which I have given you some credit. However, I state for s.6AAA purposes, that the total effective sentence would have been four years, eight months, with a non-parole period of three years, eight months.
436I think there were a disposal order and a forfeiture order which I do not think were opposed?
437MR SAUNDERS: No, Your Honour.
438HER HONOUR: All right. I make the forfeiture order which is for a vehicle. Was it your client's vehicle that conveyed the drugs at some stage or we do not know?
439MR KELLY: Your Honour it's unclear. That application's made in relation to both Mr Huynh and Mr Van.
440HER HONOUR: No one knows who owned the car?
441MR KELLY: No.
442HER HONOUR: All right. If that is the vehicle that moved the drugs, it should be forfeited.
443MR KELLY: It should, correct.
444HER HONOUR: And a phone and a box with the phone. All right, I make that order and the disposal order is for phones and receipts, yes. All right, I make those orders. Take a seat Mr Van while I just check whether I have covered everything.
445MR SAUNDERS: Your Honour, as I understand the sentence that you've given Mr Van on the summary offence, it's three months and you've accumulated one month. My instructor noted and I concur that earlier in the - stating the maximum penalties, you said the penalty for committing an indictable offence whilst on bail is twenty-four months. I think the penalty is three months.
446HER HONOUR: Is it?
447MR SAUNDERS: Yes.
448HER HONOUR: I'm sorry, I thought it was the general summary limit. All right.
449MR SAUNDERS: Yes, so that would mean that you've given Mr Van the maximum penalty here and ‑ ‑ ‑
450HER HONOUR: All right I - which I shouldn't do of course.
451MR SAUNDERS: You shouldn't do, no.
452HER HONOUR: And in particular, he's pleaded guilty.
453MR SAUNDERS: Yes.
454HER HONOUR: I'm sorry I was under the impression it was two years, but in the throes of what I have been trying to work through ‑ ‑ ‑
455MR SAUNDERS: Certainly, but ‑ ‑ ‑
456HER HONOUR: ‑ ‑ ‑ the jigsaw puzzle I have had with six people, I ‑ ‑ ‑
457MR SAUNDERS: It wouldn't necessarily ‑ ‑ ‑
458HER HONOUR: I apologise for that.
459MR SAUNDERS: Not at all.
460HER HONOUR: Thank you for pointing it out. If the ‑ ‑ ‑
461MR SAUNDERS: But it wouldn't necessarily vitiate the total sentence, but Your Honour ought vary the sentence that's been - the head sentence that's been imposed. It doesn't have to vary the cumulation, but the sentence imposed should not be the maximum, not in this case.
462HER HONOUR: It certainly should not be the maximum.
463MR SAUNDERS: It cannot be said to be the worst offence.
464HER HONOUR: I will vary the sentence to two months to take into account it was committed so shortly after the granting of bail. I really must address the cumulation again. I think because of what I had in mind, it is not appropriate to cumulate as much as a month, and I will not cumulate on it because the awkwardness of adding two weeks or three weeks is just too awkward in the calculation. That is due to my mistake, but Mr Van is entitled to the benefit of it. I will not cumulate from the summary offence. So the total effective sentence is thirty months - leaving the non-parole period where it was. It was always long thought out that one.
465MR SAUNDERS: If Your Honour pleases.
466HER HONOUR: Yes.
467MR KELLY: Your Honour pleases.
468HER HONOUR: All right. I am sorry for that mistake. Have I now covered everything?
469MR SAUNDERS: Yes, Your Honour.
470HER HONOUR: All right. What I will do, as I did with others, was while the orders are being prepared, allow close family members if they are in court, to approach and speak, with legal representation, but not to have physical contact with Mr Van because he is in custody. Mr Kelly, do any - if you can facilitate that.
471MR KELLY: Yes if I may, Your Honour.
472HER HONOUR: If they wish to and if he wishes to. Now while the order is being prepared - sorry, got to change it for that. All right, thank you.
473MR COLE: Your Honour, might I - given we're in the interval, might I be excused for about one minute?
474HER HONOUR: Absolutely.
475MR COLE: Thank you.
476HER HONOUR: I can also ‑ ‑ ‑
477MR COLE: Just before we continue on, but it'll be a minute.
478HER HONOUR: Yes I can stand down shortly, but if you want to be excused ‑ ‑ ‑
479MR COLE: No I'll just be a minute, Your Honour.
480HER HONOUR: ‑ ‑ ‑ in the meantime, that's all right.
481MR COLE: Thank you.
482MR KELLY: Thank you for that, Your Honour.
483HER HONOUR: All right, the order is about to signed and I will ask that Mr Van be removed from the courtroom please. Thank you. All right, now if you want to be excused Mr Kelly, you can be.
484MR KELLY: May I Your Honour?
485HER HONOUR: Yes.
486MR KELLY: Thank you.
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