Director of Public Prosecutions v Fisher
[2024] VCC 706
•16 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-02285
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL FISHER |
---
JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 April 2024 |
DATE OF SENTENCE: | 16 May 2024 |
CASE MAY BE CITED AS: | DPP v Fisher |
MEDIUM NEUTRAL CITATION: | [2024] VCC 706 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW- Sentence
Catchwords: Trafficking in Drug of Dependence- Large Commercial Quantity –
Trafficking in Drug of Dependence – Possession of a Drug of
Dependence – Significant Drug use – Drug Rehabilitation – Mental
Health – Contribution to the Community – No prior Criminal History
- Sentence Below Standard Sentencing
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Tibrucy v The Queen [2010] VSCA 307; R v Merrett, Piggot &
Ferrari [2007] VSCA 1; R v Cockerell [2001] VSCA 239; DPP v
Candaza, Koufomanolis, Mavros & Nunez [2003] VSCA 91;
Delgliesh v The Queen [2016] VSCA 148; Peter Brown v The
Queen [2019] VSCA 286; DPP v Jabbour [2023] VSCA 204; DPP v
Michael O’Brien [2024] VCC 01 February 2024
Sentence: Total Effective Sentence of five years and four months, and non-
parole period of three years
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Mahady with | Office of Public Prosecutions |
For the Accused | Mr D. Dann KC | Ms J. Fayman |
HIS HONOUR:
1Samuel Fisher, on 27 March 2024, I granted your application for a Sentence Indication. I indicated that if you pleaded guilty to six drug offences as set out on Indictment N10986917, I would impose a total effective sentence of five years and four months with a minimum non-parole period fixed at three years. A few days later, you notified the Court that you accepted that indication, and shortly after, you were arraigned and pleaded guilty to the six charges.
2The prosecution tendered at the Plea a set of facts and circumstances outlining your offending. It was by and large the same opening that was tendered at the Sentence Indication. Your counsel added important exhibits and made further submissions at your Plea beyond what was tendered and spoken about at the Sentence Indication. Your counsel's further oral submissions ultimately led to him saying that he was not seeking a sentence different from what was indicated.
3As I said in my reasons for giving the sentencing indication, I utilised the same methodology of instinctive synthesis and individualised sentencing that would be used and has been used in coming to the sentence that I will shortly announce. But given that I set out detailed reasons, I will refer to and repeat a good deal of what I said in my reasons for the Sentence Indication.
4First, I need to set out what it is you did so as to be able to conform with the requirement of the Sentencing Act that I make an assessment of the gravity of your crimes and your moral culpability. I need also to understand who you are, which may explain why you did what you did but also, importantly at this point, what changes you have made and what the future holds. I must also consider all those matters in light of the purposes for sentence as they are set out in the Sentencing Act.
5In assessing the gravity of your crimes, I turn to the prosecution opening, which summarises how the case is put against you. I have taken into account all the facts and circumstances as set out by the prosecution. I will endeavour to set out a briefer summary for the purposes of these reasons.
6On 20 April 2022, police in Western Australia were alerted to and then discovered a suspicious parcel destined for Victoria. When it was examined, it was discovered the package contained $129,000 in cash. The Western Australian police were able to trace that package to a man called Julien Morvan. The Western Australian police moved speedily to investigate Morvan. They discovered that a large parcel had been sent to him from Victoria. Also, at a later point on 20 April 2022, the police intercepted that package sent from Victoria and found it was an oven rangehood. This oven rangehood had been purchased by Morvan online from the Harvey Norman store in Mordialloc, Victoria. When the oven rangehood was deconstructed by police, they found a hidden package containing 996 grams of methylamphetamines and, separately, a package of 82 grams of cocaine.
7I will return back to what happened to Morvan in the Western Australian District Court when he came before that Court for sentence. His sentence is pivotal to the exercise of my sentencing discretion with respect to the serious charges that you have pleaded guilty to. I say that because what followed from the investigation in Western Australia was that police in Victoria were alerted and investigated what happened to the oven rangehood that ended up with drugs in it in Western Australia after it was ordered from a Harvey Norman store in Victoria.
8You, Mr Fisher, knew Morvan and were in coded communication with him using various mobile phone apps. You received instructions to pick up the oven rangehood from the Harvey Norman store. You were instructed to deliver it to Mr Morvan's father's shop. From there, the rangehood was sent onto Morvan in Western Australia. The prosecution say that you knew that the drugs were in the rangehood on the basis of encrypted messages on your phone and Morvan's phone. Thus, you were involved in the transport or movement of the drugs from their source in Victoria onward towards the users in Western Australia.
9All this movement of packages or drugs from Victoria to Western Australia occurred quite quickly. The picking up of the rangehood in Victoria by you occurred on 14 April 2022. You delivered it to Morvan's father's shop on 20 April, and it was collected from there by commercial couriers and sent to Western Australia the same day.
10Police in Victoria came and searched your residence and car on 18 May 2022. Police found an array of drugs and, importantly, your phone. After interrogating your phone, the police found the other half, as it were, of the encrypted communications between you and Morvan. As to the drugs found at your premises, there was 500 mil of 1,4-butanediol, some further methylamphetamine, LSD and various other steroid-type drugs, and prescription drugs and ketamine.
11What resulted of all that was that the prosecution charged you, and you have pleaded guilty to the six charges, being: trafficking in methylamphetamine in not less than a large commercial quantity, being the 996 grams sent to Western Australia; trafficking in a drug of dependence, being the 82 grams of cocaine sent in the same consignment; a further charge of trafficking in a drug of dependence, being the 1,4-butanediol found in your car and the methylamphetamine found in the house; together with possession of drugs of dependence, being the LSD, the testosterone and the various other drugs found at your premises.
12As is plain, the offences arising from what was found in the rangehood ordered by Morvan and transported to Western Australia are by far the most serious offences. The crime of trafficking in a large commercial quantity has a grim maximum penalty of life imprisonment. Also, it is an offence in the standard sentencing regime, with the standard sentence fixed at 16 years' imprisonment. These terms are the statutory guideposts for these offences. I will refer again shortly and in more detail to the standard sentencing regime.
13What appellate authorities have made clear is that in assessing the gravity of a particular example of trafficking in drugs, the quantity involved is a central consideration. Here, with respect to the methylamphetamine sent to Morvan, the amount of 996 grams is beyond the threshold applicable for large commercial quantity. It is approximately 1.3 times the large commercial quantity threshold. That said, it is not a large or significant example in terms of the cases that come before this court involving trafficking in large commercial quantities. There are some, but not many, that are less, but many more cases that come before this court involve very significantly larger amounts of drugs up to 10, 20 and 30 times the threshold for large commercial quantity.
14What I also must keep in mind is that the appellate courts have also made clear that while quantity is central, so too is the role of a particular offender in the trafficking operation. Role is a factor that is always important and sometimes very important in assessing the gravity of a particular offender's criminality as well as the offender's moral culpability. This issue of role comes to the fore when there are others charged with the same trafficking transaction. Usually in those circumstances, those involved in the same crimes will be sentenced by the same judicial officer in the same court. That, of course, is not possible in this case, as Morvan's part in this crime meant that he was sentenced for committing offences against the Western Australian State laws.
15As mentioned, he was sentenced in the Western Australian District Court. The crimes Morvan pleaded guilty to are on all fours with the crimes that you have pleaded guilty to with respect to the drugs sent from Victoria to him in Western Australia. Importantly, the maximum term is identical with respect to the 996 grams of methylamphetamine. That is, the maximum term in Western Australia for attempting to possess the drug for sale is life imprisonment, the same as it is for trafficking in a large commercial quantity of drugs in Victoria. With respect to the 82 grams of cocaine, the maximum term for attempting to possess this amount of the drug is, in Western Australia, 25 years' imprisonment. In Victoria, the maximum term you face in relation to the cocaine is significantly lower, being 15 years' imprisonment.
16I raise this issue of the maximum term in the context of assessing your role in these crimes relative to Morvan's role. It is clear that your role was a lesser one to that of Morvan. His involvement and moral culpability as a trafficker in drugs is graver than yours. Importantly, the prosecution here agrees with that description; that is, of the more significant role of Morvan and, correspondingly, your lesser role.
17What you did was pick up the rangehood he had ordered online, and then you delivered it to his father's shop to be sent to Western Australia the same day. It is clear that Morvan was more in command, more of the organiser of this transaction, and plainly he was central to the distribution operations in Western Australia. The evidence arising from the Western Australian prosecution of Morvan, as revealed in his plea in the District Court, establishes that this transaction was not a one-off as far as Morvan was concerned. The evidence in his case established that he had a number of rangehoods sent to him in Western Australia in a recent period before the transaction that involved you.
18There must always be appropriate differentiation between the drug offender in charge or in a more commanding organising role than other offenders who play a more limited role, such as your courier-type role. That said, the appellate courts have made clear that general deterrence is always a weighty consideration in sentencing drug offenders, no matter where they sit in a hierarchy. Each plays an important role, and that is the case here. Your role in getting the package to Western Australia was important, but in my view, as I have said, you are less culpable than Morvan, and the gravity of the crime you committed, or your part in it, is less serious than Morvan.
19The complication or real tension that arises is that the sentence imposed by the District Court in Western Australia was, on any view, a very merciful one. For the equivalent offence to your crime of trafficking in a large commercial quantity, Morvan was sentenced to five years and six months. For the offence relating to the cocaine, he was sentenced to three years. He was also dealt with, as you are not, to a crime involving the dealing with the proceeds of crime, being the $129,000 that he was sending to Victoria.
20The orders for cumulation in the District Court were such as to add six months of the cocaine sentence to the base sentence relating to the methylamphetamines. Consequently, the total effective sentence imposed on Morvan was one of six years, and a minimum non-parole period was fixed at four years.
21My analysis of the transcript of the Plea provided to me, and the sentencing remarks relating to Morvan, led me to the conclusion that not only was he the more serious offender but that his subjective factors were not nearly as mitigatory as the long catalogue of matters put forward on your behalf. Not least of these was that Morvan had a prior conviction for a drug offence in Western Australia – a much less serious offence than those that he faced in the District Court, but nonetheless he did not come to the court as a first offender who had made one grave mistake.
22The issue of parity in the sentence of Morvan understandably loomed large in the submissions made by the parties. The prosecution described the sentence imposed on Morvan as inappropriately lenient, and if imposed in Victoria, it would be manifestly inadequate. The prosecutor elaborated that while the issue of parity was of real significance, I ought not impose another inadequate or overly lenient sentence on you so as simply to satisfy the principle of parity. Rather, the prosecutor submitted what I ought to do is consider the appropriate range for your part in the crime and ensure that your ultimate sentence was at the lowest end of that range. The prosecution referred to appellate authorities supporting that methodology.
23On this point, your counsel argued by reference to well-known authorities that parity remains a cornerstone of sentencing principle. Your counsel submitted that if I was to punish you more severely than the more culpable Morvan when you, unlike him, were without any prior convictions, and you, unlike him, had taken enormous steps to rehabilitate, then in those circumstances your inevitable sense of grievance would be entirely justified. A more severe sentence for you would be, in simple terms, unequal justice, and accordingly I ought avoid such an outcome. I will return to this important issue of parity once I have outlined your personal circumstances, which, as I have said, paint you in a better light than Morvan, especially with respect to what you have done to return to law‑abiding ways.
24You are now 41 years old. You were born and raised in a close and loving family in Barmera, South Australia. Your family ran a sports store in town. You were educated to Year 12. You were heavily involved in sport, achieving a high standard first as a golfer and then as an Australian Rules footballer.
25After school, you relocated to Adelaide where ultimately you played football for the West Adelaide Football Club for two years before being drafted by the St Kilda Football Club in 2003. You played at that club for 13 years, achieving high accolades as a winner of the club's best and fairest player twice, and All Australian selection in 2008. After 228 games, you retired.
26Your parents wrote a letter to the court, tendered on the Plea, attesting to your contribution and your ongoing connection to the district in which you grew up. They continue to provide you with significant support and are devastated at where things have ended up. They speak of your genuine remorse, shame and guilt at letting them and others down. Other letters and testimonials were secured after the Sentence Indication which were tendered at the Plea. I will refer to them shortly.
27What is important at this juncture in the outline of your personal circumstances is what you experienced after you retired from football. You intended to continue to play at a lower level in 2016 but suffered a serious injury in a wakeboarding accident. You moved to another club in 2017 as an assistant coach but then took up playing before suffering injury again.
28Your life post-involvement in elite sport deteriorated quickly. You worked in marketing, but your real focus was on property development. You had worked on your residence in Beaumaris from about 2012 to 2017 before selling it in what I understand was profitable terms. You then endeavoured to start a new property development project in Frankston. However, this project moved slowly before stalling completely once the COVID pandemic took hold. You found yourself out of work while not having any involvement in a sporting club. Your financial stability and your savings from your football years were being exhausted at an alarming rate.
29In this context, your use of drugs spiralled out of control. You were using significant amounts of methylamphetamine and GHB daily. You acknowledge now you were fiercely addicted and consuming multiple drugs in an uncontrolled fashion. In those circumstances, you began to move in circles of others involved in drugs, including becoming connected to Morvan. Your chaotic lifestyle came to an abrupt end when you were arrested in May 2022. Your arrest and remand into custody brought very considerable public shame given your previous high profile as a successful footballer. You remained in custody for 48 days in what was for you a frightening, eye-opening experience.
30You have reflected on the circumstances of your deep decline. In your discussions with the psychologist, Ms Ferrari, on these topics, you set out things which led her to write the following at paragraph 116 of her most recent report:
Mr Fisher has been able to reflect on his offending behavior (sic) and the precipitating factors to this, identifying a gradual but significant decline in his mental health since he retired from professional football in 2016 and following which he struggled with his sense of identity and role transition due to lack of career aspirations or qualifications to support him in his post-AFL career.
A number of subsequent personal setbacks including the breakdown of a significant relationship, only served to reinforce his depression, sense of hopelessness, and lack of confidence in himself, and he began self-medicating to distract himself and manage his symptoms. He felt increasingly dejected, isolated, and questioned his worth post football, and the extent of his mental health was realized in COVID-19 when he could no longer distract himself with substance use or avoid his problems, and he found himself without his usual support system due to reduced access to his friends, network supports, and his family who reside in South Australia. His mental health at that time substantially deteriorated.
31You were, after 48 days in custody, released on bail to an in-patient drug rehabilitation facility in a regional Victorian town run by an organisation, Arrow Health. You completed a strict and intensive program, staying as an in-patient for 105 days, which is beyond the usual 90-day period of the program. The letter tendered from the forensic intake manager of that organisation, Ms Briffa, spoke of your motivation and your mentoring of others. You were seen as an asset to the organisation as well, successfully commencing thereafter your long-term rehabilitation.
32You moved from the in-patient rehabilitation facility to the ongoing day program, which required your attendance regularly at the facility in Maldon. You were subjected to urine analysis on each attendance. You advanced in your understanding of relapse prevention as you reintegrated back into the community.
33You moved into employment with an organisation, Expert Telecommunications Pty Ltd, they work closely with Arrow Health. The letter from the manager, Mr De Girolamo, was very helpful in outlining your commitment to work and your rehabilitation from your addiction. As an aside, I note the good work done by the organisation Expert Telecommunications in supporting recovering addicts.
34You finished up at Expert Telecommunications in December 2023. You then had obtained a number of certificates and tickets that enabled you to move into traffic control in the construction industry. You have been working for a labour hire company mainly on rail infrastructure jobs. You have impressed as a reliable, hardworking man. You are a long way from the daily drug-taker of 2022. You have maintained involvement in Arrow Health programs, providing mentoring to others to demonstrate that there can be a way out of addiction.
35As mentioned, your counsel tendered and relied on other letters secured after the Sentence Indication. One was from the deputy principal of your local high school, who was in that role or a similar role when you were at school many years ago. He was and is involved also in the local golf club where you commenced your golfing sporting interest. He spoke of your care for others and contribution to the community even after you left to play football in Melbourne. He also spoke of the impact on your parents. He concluded that he knows how much you regret your actions and how you could use your experience to teach others not to fall into chaotic drug-fuelled lifestyles.
36This topic of making a contribution by warning of the perils of drugs was taken up and expanded upon in your discussions with Ms Ferrari, the psychologist. She wrote of your increased engagement in public speaking and your motivation not just to assist by preventing others from embarking in
self-destructive drug use but also to widen it out, as it were, to encourage and support men in particular to recognise and act on emerging difficulties with mental health. You see a purpose and are making a difference, it seems, in reducing the stigma of men acknowledging mental health difficulties and reaching out for support.37You have connected with a number of organisations who work to address mental health problems and emotional well-being. One of those is an organisation GBS (Good Blokes Society). You met the founder, Mr Wallis, when you were at St Kilda. He wrote to the Court in these terms.
In 2014 I created an organisation for men called the "The Good Blokes Society". Our purpose is to provide platforms for men to create positive relationships. With a membership base spanning across Australia -and even reaching Singapore, we actively promote men's health initiatives and support numerous charities…
38He says:
Sam joined the Good Blokes Society in November 2022 and has become a valued member of our community since. He has exemplified the qualities of a "Good Bloke." Through his genuine compassion, intelligence, and consideration, Sam has earned the respect and admiration of our members. He has participated in various events, ranging from intimate gatherings to large-scale presentations, where he has openly shared his personal journey, including his struggles with addiction and the subsequent path to rehabilitation.
During these engagements, Sam has demonstrated remarkable courage and honesty, inspiring others with his resilience and determination to overcome challenges. His willingness to speak candidly about his experiences has not only fostered empathy and understanding but has also served as a valuable lesson for those facing similar struggles.
39He concludes:
I am immensely proud of Sam's growth and contributions to our community. He has actively participated in charity events, business functions, and social gatherings, consistently demonstrating his commitment to supporting others and building meaningful connections.
40You have received considerable support in your rehabilitation from the St Kilda Football Club, and I note the letter I received from Mr Brown from that club. You have also received considerable support from the AFL Players Association. It is encouraging to you and commendable. You have made some tentative steps to get involved in coaching, but that was, to your considerable regret, not able to be progressed.
41Your mental health, anxiety, distress and fear of incarceration has increased as these proceedings headed towards finality. Notwithstanding, you described your improved resilience. You spoke in these terms to Ms Ferrari:
Mr Fisher stated that his mental health overall had improved after completing rehabilitation, describing realization that he often avoided his emotions and “put things off”, but instead has learned how to identify and manage his emotions and understand what is causing them. He continues to experience sadness, guilt, and shame over the impact of his actions on others, particularly his parents.
42Ms Ferrari summarised your rehabilitation in these terms:
Mr Fisher has put significant effort into his rehabilitation since being bailed in June 2022. He completed the three-month residential component of the rehabilitation program at Arrow Health, and then committed to a further 10-month extended forensic care program which he described as lifechanging. He has made great progress in reestablishing and rebuilding his life and stability since his discharge from Arrow Health, using his networks and contacts to find employment, complete further qualifications, and stabilizing his accommodation as well as improving interpersonal connections to solidify his supports within the community.
Mr Fisher has also been able to use his networks and contacts to engage in community and charitable endeavours sharing his own mental health and substance use journey to reduce the stigma around male mental health, and in mentoring and coaching up and coming VFL players which reconnected him to football and gave him a sense of contribution and worth again, though this has currently ceased due to conflict with his nightshift at work.
He has undertaken extensive work to understand, reflect, and reform himself since the offending occurred, and to ensure that he addresses the underlying causes of his destabilization, that is, his mental health, and developed his coping milieu and social supports to prevent this from reoccurring in the future. Mr Fisher remains deeply remorseful for his offending behaviour which was entirely uncharacteristic of him and his history supports that this was a marked deviation from his usual premorbid functioning. This further reduces his risk profile, as this was an isolated and discrete period rather than a stable and enduring pattern that has persisted throughout his life.
43Your commencement and ongoing commitment to your drug rehabilitation and your move into solid employment and positive social networks indicates that you have well and truly reversed what was a dreadful and out-of-character episode in your life. I say out of character because you have no prior criminal history. That entitles you to ask for a merciful sentence, but that said, at no point were you under any illusion that as a consequence of the fact that your first crime was such a serious one, a merciful sentence nonetheless involves years of imprisonment.
44But the point that needs to be understood is that steps taken to rehabilitate need to be acknowledged in the sentencing process. This was emphasised many years ago by our Court of Appeal, and it remains important to this date. President Maxwell in the well-known authority of R v Tibrucy[1], which was repeated in R v Merrett[2], with reference to earlier decisions, said the following:
As Chernov, J.A. made clear in Cockerell[3], the sentencing court looks to the future as well as to the past. What has occurred cannot be undone, and appropriate penalties must be imposed. But there is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided.
I consider this Court should support sentencing judges who recognise and reward efforts at rehabilitation. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution in much of the public comment on sentencing is understandable, but it focuses only on one part of what the sentencing court does.
[1] R v Tibrucy [2006] VSCA 244 [15]
[2]R v Merrett, Piggott & Ferrari [2007] VSCA 1
[3]R v Cockerell [2001] VSCA 239
45Thus, your rehabilitation since you were released on bail now approaches two years, and it must be acknowledged - and not merely by paying lip service, but here, in practical terms - through the imposition of a sentence, and in particular a non-parole period, that does recognise and reward those that genuinely put drugs and crime behind them. In this regard, I do not lose sight of just how serious your drug trafficking crimes were, but as was said by the Court of Appeal, in allowing a non-conviction sentence to stand for young offenders who committed an armed robbery, that the seriousness of a crime is not determinative of penalty[4]. It is a key factor, but it cannot overwhelm all others.
[4] DPP v Candaza, Koufomanolis, Mavros & Nunez [2003] VSCA 91 [15]
46This broad principle was firmly restated by the High Court in Dalgliesh v The Queen[5] in what the High Court described as the need for individualised sentencing. Thus, in your particular case, there must be a close analysis of what you did, who else was involved, the relative roles, how you got into criminal activities and, importantly, what you have done in response to achieve reformation.
[5]Delgliesh v The Queen [2016] VSCA 148
47To return to the vexing issue of parity with Morvan, I have given anxious consideration to the approach suggested or urged by the prosecution; that is, that your sentence should be at the lowest end of the appropriate range to achieve relativity with what the prosecution described as the overly lenient sentence imposed on Morvan. But the process of parity is not a binary mathematical one. That is so because consideration has to be given to the important steps that you have taken in rebuilding your life over the past two years. I have considered all these factors as well as your lesser role than that of Morvan.
48All these relevant matters lead me to the conclusion that a sentence longer than that imposed on Morvan would give rise to a genuine sense of grievance and undermine the fundamental principle of equality of justice. This conclusion is made mindful that your offence is a standard sentencing offence in Victoria, which is not a feature of Western Australian sentencing law. I note the important preservation in Victoria of the sentencing methodology of instinctive synthesis when I give consideration to the standard sentencing regime.
49Accordingly, there must be due regard to the principles of parity albeit that Morvan was not strictly charged with the standard sentencing offence of trafficking in a large commercial quantity, but that is a product of the different State sentencing laws. However, the facts and circumstances, as I have outlined, make it clear he was organising the same drugs that give rise to your standard sentence offence of trafficking in a large commercial quantity. He was organising them to be sent to him for sale.
50I have considered the guidance provided with respect to standard sentencing from the Court of Appeal decision in Brown v The Queen[6]. In my view, there are powerful reasons for imposing a sentence well below the standard sentence. They are: the role that you played, which I have described; the role of Morvan, which I have mentioned in significant ways; the sentence that was imposed on him in Western Australia; and all the other matters relating to your significant reform, your plea of guilty and your deep remorse.
[6]Peter Brown v The Queen [2019] VSCA 286
51Further, with respect to the standard sentencing regime, the relativity of the head sentence and the non-parole period that I indicated is below the statutory percentages. In my view, that is appropriate because the principles that permit elevated weight to be given to the mitigatory rehabilitative matters impact particularly on the fixing of a non-parole period.
52I add that I was told at your Plea that you are in a current supportive relationship, including your involvement in the care of your partner's young daughter. Your pending incarceration will present difficulties for them, and you are understandably concerned for their welfare. This concern will make gaol harder. You will hopefully be released on parole into a supportive environment.
53Gaol will be harder, as you are concerned about what other prisoners will make of your profile. Your level of depression and anxiety, as set out in the psychological reports, will also impact on how onerous your sentence is for you. Beyond your mental health, there are physical health difficulties, or your physical health is problematic; in particular, your enduring back pain and lumbar spine stenosis, which is attributable to your years of impact on the football field. You have had treatment, including nerve root injections. You were due to see a pain specialist shortly referred by your treating sports medicine physician, Dr Barbour, who has continued to treat you following his engagement as a St Kilda Football Club doctor and now in a private capacity. I have taken that into account.
54Your plea of guilty is valuable. It relieves the still overburdened criminal justice system of a lengthy trial. It relieves the prosecution of the burden of being able to prove to the exacting standard of beyond reasonable doubt all the elements in the very complex set of offences or with respect to drug offences. These areas are complex. The plea would mean that there must be a lower penalty. Other offenders have to be encouraged to plead guilty rather than to take the odds with a trial.
55The sentence that I have come to in some respects could be seen as an outlier with respect to large commercial quantity, but that is because of the unique circumstances. It is in that way an expression of individualised sentencing. The unique circumstances are, of course, the parity issue, which is very important but not the sole reason for your sentence being at the level that I determined. I examined many other cases of large commercial quantity. I referred to the Court of Appeal decision in Jabbour[7], a sentence imposed which was 12 years with a minimum of seven on an accused who was dealing with 7 kilograms of a drug of dependence and had many, many other drugs at a lesser level. That man had two serious prior convictions for drug trafficking. I also considered other sentences that I have imposed, where there were 66 times the large commercial quantity, where sentences after pleas have been around eight years, being the non-parole period[8].
[7]DPP v Jabbour [2023] VSCA 204
[8] DPP v Michael O’Brien [2024] VCC 01 February 2024
56As I made clear at the Sentence Indication, there needs to be a clear message of deterrence to anyone who may be minded to get involved in serious drug trafficking. The message is that if you do get involved or you do embark on serious drug offending, years of gaol await. Also important is the public denunciation of your crime. The spread of methylamphetamines is a scourge in our community. Those involved must be punished not just with words of condemnation but in a practical way by depriving them of their liberty, grave as that always is.
57The sentence I indicated is for many reasons merciful. It allows for a period on parole. Whether you are or when you are granted parole is for others, not the court, but it is the only tool I have to facilitate your rehabilitation, which, as I have said, is significantly well advanced. It is hoped your commitment to a better lifestyle remains firm despite the fact that you will be in gaol. It is always a grave step to impose gaol on someone for their first ever offence and in circumstances where they are showing strong signs of resuming a lawful, useful and contributing lifestyle but in this instance there is no other option.
58The sentence that I impose upon you, Mr Fisher, is: for Charge 1, the trafficking in a large commercial quantity, you are sentenced to a term of imprisonment of five years; for Charge 2, trafficking in cocaine, you are sentenced to a term of imprisonment of one year; Charge 3, the trafficking in the 1,4-butanediol, you are sentenced to four months' imprisonment; for Charges 4, 5 and 6, the possession of drugs of dependence, you are sentenced to an aggregate term of one month's imprisonment.
59I order that three months of Charge 2 and one month of Charge 3 be cumulative upon each other and upon the base sentence of Charge 1. All other sentences are concurrent. That gives a total effective sentence of five years and four months, and I fix a minimum non-parole period at three years.
60You have served the 48 days in custody while on remand. This figure having been reckoned, I now declare it is part of the sentence that I have just imposed. I will ensure that the declaration is entered into the records of the court so the prison authorities know that you have done the 48 days as part of this sentence.
61Had you pleaded not guilty to these offences, I would have imposed a different sentence. It would have been a different set of circumstances. The term of imprisonment would have been seven years and 10 months with a non-parole period of five years and 10 months.
62Are there any other orders required? I think there was a forfeiture to sign. I will sign that.
63MISS MAHADY: A disposal order, Your Honour.
64HIS HONOUR: Disposal. That will be signed. Anything else?
65MISS MAHADY: Just excuse me for one moment.
66HIS HONOUR: Yes.
67MISS MAHADY: Your Honour, I have just been reminded by my junior – it is in our submissions under Charge 1 - Your Honour must make a serious ‑ ‑ ‑
68HIS HONOUR: Serious offender, yes. Just remind me, I must make a declaration pursuant to the provisions of the Sentencing Act?
69MISS MAHADY: Section 89DI of the Sentencing Act.
70HIS HONOUR: Yes. That he is a serious drug offender?
71MISS MAHADY: Yes, Your Honour. It is mandatory.
72HIS HONOUR: I make that declaration.
73MISS MAHADY: Yes, Your Honour.
74HIS HONOUR: Thank you.
75MISS MAHADY: Thank you.
76HIS HONOUR: That will be entered into the records of the court. There were some outstanding media-type things, Mr Dann and Miss Mahady, relating to release of character references and so on.
77MR DANN: Yes. We would respectfully submit that that should not occur. Your Honour has given a very fulsome summary of those materials in the sentencing remarks, which can be reported and published.
78HIS HONOUR: Yes, thank you.
79MR DANN: There are other personal matters that have not been revealed for good reason, but we say it is not necessary in those circumstances.
80HIS HONOUR: Yes. Miss Mahady?
81MISS MAHADY: We would support that application, Your Honour.
82HIS HONOUR: Yes, all right. So I will not release the actual character references. There were many that were referred to and the content of them described, so there will be access to the key parts of them.
83Mr Fisher, the Court is not set up so that you can spend any moments here with those that care for you. Your lawyers will explain to you, if they have not already, just what happens in terms of your family and the like getting in touch with you. You just have to go with the prison authorities now, thank you.
84MR DANN: Could I just have one moment with him prior to ‑ ‑ ‑
85HIS HONOUR: Yes. Well, I am breaking every rule, as you know.
86MR DANN: Sorry, Your Honour.
87HIS HONOUR: But I will allow it given the tightness of time that you have.
88MR DANN: Thank you, Your Honour.
89HIS HONOUR: But I will remain on the - as I am required, I think, or the protocol. So just head down the back with your instructing solicitor.
90MR DANN: Yes, thank you.
91HIS HONOUR: I remain on the Bench for this, so just head with the prison authorities, Mr Fisher.
‑ ‑ ‑
0
8
0