Director of Public Prosecutions v Gardner (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

MILFORD GARDNER (A PSEUDONYM)

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2025
DATE OF SENTENCE:	11 August 2025
CASE MAY BE CITED AS:	DPP v Gardner (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1146

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: trafficking in a drug of dependence (commercial quantity) - trafficking in a drug of dependence – deal with property suspected of being proceeds of crime – possess Schedule 4 poison
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited:DPP (Cth) v Maxwell [2013] VSCA 50; Akoka v The Queen [2017] VSCA 214; Gregory (a pseudonoym) v R [2017] VSCA 151; Ellis v The Queen [2018] VSCA 221.
Sentence:Drug and Alcohol Treatment Order for a period of 40 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Jeong	Office of Public Prosecutions
For the Accused	Ms P. Marcou	Prince Legal

HER HONOUR:

1Milford Gardner,[1] you have pleaded guilty to one charge of trafficking in a drug of dependence (commercial quantity), and one rolled up charge of trafficking in a drug of dependence.
[1] A pseudonym.
2You have also agreed to this Court hearing, and have pleaded guilty, to the summary charges of possessing a schedule 4 poison (rolled up) and dealing with property suspected of being proceeds of crime.

Circumstances of the offending

3The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A (as amended in Court). This constitutes the factual basis upon which I sentence you.
4On 11 September 2024 at approximately 6:40am, police executed search warrants at your address at York Place, Prahran and on your white van.
5You were arrested driving your van on York Place. You were the sole occupant of the vehicle.
6You were wearing a black bum bag clipped around your torso. Police searched the bum bag and found the following:
a. A small zip lock bag containing methylamphetamine.
b. One white pill pressed with the logo ‘CG’.
7Police entered your address and arrested two associates inside. A search of the property was conducted where the following items were discovered:
a. Drugs of dependence in multiple locations including the dining, living, bedroom and kitchen areas.
b. Sildenafil located in the right hand side bedside table in your bedroom.
c. A glass smoking pipe located on the TV cabinet.
d. An Apple iPhone, located in the bedroom.
e. Empty deal bags and weight scales.
8Police requested the passcode to your iPhone and you complied with the request.
9A search of the van was also conducted where police found the following items:
a. An envelope containing $3010 cash (summary offence 21).
b. Drugs of dependence located in the centre console.
c. A red Milwaukee toolbox located in the rear of the vehicle containing numerous drugs of dependence.
d. A different red Milwaukee toolbox located in the rear of the vehicle containing a blister pack of Quetiapine and a blister pack of Amitriptyline (under brand name ‘Entrip’).
e. A further toolbox containing scales.
f. A large Milwaukee toolbox containing Twenty (20) individual boxes labelled ‘natural plant extract’ each containing approximately 500ml of 1,4 butanediol.
g. A Milwaukee toolbox containing various jars of cannabis totalling 82.5g.
10All drugs of dependence seized are tabled in Annexure A.

Interview

11You were transported to the Prahran Police Station where you were processed and interviewed. You made admissions, as outlined in the prosecution opening, including to trafficking in drugs.

Phone analysis

12On 25 September 2024, police analysed your mobile phone and discovered the following:
a. Multiple photos and videos of drugs of dependence.
b. A note saved in your phone labelled ‘confidential’ containing a price list of all drugs as of 1 July 2024.
c. Signal message exchanges with different individuals depicting offers to buy and sell drugs of dependence

Drug analysis

13The drugs were analysed and totalled the following quantities -
(a) 1,4 Butanediol 10.019kg
(b) Methylamphetamine (MA) 67.5g; cocaine 6.6g; ketamine 7.6g; MDMA 1.4g; and cannabis 82.5g.

Gravity of offending

14Your offending is serious. In particular, charge 1 is punishable by a maximum penalty of 25 years imprisonment. It is also a category 2 offence within the meaning of the Sentencing Act.
15On charge one, the majority of the drugs were seized from your vehicle, in 20 bottles packaged in cardboard boxes labelled ‘Natural Plant Extract.’ This was estimated to weigh 9.849kg. Two bottles were seized from your home – one bottle (85g) from the kitchen bench and another (84.7g) from the bedroom floor. The prosecution accept that the drugs seized from your home ‘appear primarily for personal use’ (see paragraph [14], submissions 16 July 2025).
16You are charged with trafficking for a one-month period. On your phone was a memo dated 18 August 2024 with a price list you used for advertising and messages of trafficking, with an estimated value of the drugs referred to in the prosecution’s submissions of 16 July 2025 at paragraph [18]. While the precise frequency or quantum of actual transactions during this period is not clear, in addition to the phone evidence, you made admissions to trafficking drugs within this period of time and were obviously found in possession of a commercial quantity of the drug upon your arrest on 11 September 2024.
17On charge two you engaged in polysubstance trafficking over the same period. It’s a rolled-up charge and I take into account the full circumstances of your offending. The total quantity of methylamphetamine was 67.5g with a pure amount of approximately 40-60g. Two bags containing 2.4g were seized in your home. Six bags containing 65.1g were seized in your vehicle. The total quantity of ketamine was 7.6g. One bag containing 1.8g was seized from a kitchen drawer and 5.8g from two bags from your vehicle. The total quantity of cannabis was 82.5g. This was packaged in seven bags and jars and seized from your vehicle. The total quantity of cocaine was 6g, which was packaged in two bags seized from your vehicle. The total quantity of MDMA was 1.4g. Three broken and empty capsules containing 0.5g were seized from your house and one bag containing two tablets weighing 0.9g were seized from your vehicle.
18In relation to charge 1, the prosecution submit that your offending is serious. The offending involved a significant quantity of 1,4 butanediol, estimated to weigh just under five times the commercial quantity threshold. Also, you were trafficking in polysubstances, some of which were not in insignificant amounts. Most of the drugs exceeded the traffickable quantity, with the total quantity of methylamphetamine estimated to be 22 times the traffickable quantity of 3 grams. Further, the prosecution submit that you were the sole offender. The prosecution accept that you offended in part to feed a drug dependency which reduces your moral culpability but submit that the weight to be given to this should be limited given the scale, duration and seriousness of the offending.
19Your Counsel submits that the assessment of your offending needs to take into account that the offending is charged over a confined one-month period. Further, you were motivated to support your own drug use; you operated alone and not as part of a larger syndicate; and there are no aggravating factors such as the use or seizure of weapons.
20The sentencing regime for drug trafficking offences is quantity based. Other things being equal, the larger the quantity trafficked, the more serious the offence. Quantity is clearly an important factor but not the only factor to consider in an assessment of the gravity of the offending.
21While there are examples of cases involving much larger quantities of 1,4 butanediol and more sophisticated ventures, you trafficked in a significant amount. Both Counsel raise, and I take into account, that it is generally accepted that trafficking this substance often attracts lower sentences than other drugs of dependence, reflective of its relatively diminished financial return.[2] Nevertheless, your offending is serious and you have pleaded to trafficking in a commercial quantity of this drug for approximately a one-month period. You also trafficked in other drugs, in varying and in overall not insignificant quantities during the same period. I accept that you were heavily using drugs at the time and you partly offended to feed your addiction and that this in turn moderates your moral culpability. I also accept the prosecution submission that this needs to be balanced against the scale and seriousness of your offending. Further, while there’s no evidence of significant enrichment, it appears, by your own admissions in your record of interview, that your offending was also supporting aspects of your lifestyle.
[2] DPP (Cth) v Maxwell [2013] VSCA 50.
22The proceeds of crime charge relates to an envelope containing $3010 seized from your vehicle. While not an insignificant amount, cases involving cash or other types of property of higher amounts are regularly seen by the court.
23In relation to the possession of schedule 4 poisons, this is also a rolled-up charge. The sildenafil was seized from your bedroom and was for personal use, while the quetiapine and amitriptyline was seized from your vehicle. You admitted to selling quetiapine. The amitriptyline was left at your house.
24In respect of all of the charges, the principle of totality is important given the overlap between the offending. Charges 1 and 2 are committed over the same period of time, and effectively as part of the one ‘venture’ and the summary charges arise from the search of your property on 11 September 2024. While the sentences imposed must reflect and mark the separate criminality involved, the principle of totality will be given effect through appropriate orders for concurrency.

Plea of guilty

25Your plea of guilty was entered at an early stage and entitles you to an important sentencing discount. It has utilitarian value and indicates your willingness to facilitate the course of justice and accept responsibility for your offending. I accept that your plea of guilty is also indicative of remorse. I also take into account that you co-operated with the police by providing access to your phone and in making fulsome and substantial admissions in your interview. You also expressed remorse in your interview, stating ‘well, the stupidest thing you can do is sell stuff.’ When asked what you had to say about the offending you stated, ‘I’ve got nothing to say about it. I-I just wanna- I hate it.’ In your subsequent engagement with consultant psychologist, Mr Luke Armstrong, he also refers to you as expressing ‘genuine regret for [your] offending decisions’.

Personal circumstances

26Your personal circumstances were outlined by your Counsel and are canvassed in the report of Mr Armstrong of 16 July 2025.
27You are now 32 years of age.
28Your parents are retired and live in rural Victoria. You are the youngest of two children. Your brother works full time in a factory. Your background is generally unremarkable. Both parents worked, cared and provided for you and your brother. There is no history of learning or social problems although you report struggling with personal confidence and self-esteem deficits all of your life. In your earlier years you channelled these insecurities into competitive sport.
29You started binge drinking from 14 years of age, which included heavy drinking until you vomited, a pattern that progressed to weekend use. From the age of 15 years you started to experiment with cannabis.
30You completed VCAL though had largely lost interest in school, and your sporting activities, from around the age of 15 years.
31Although you never wanted to do a trade, by the time you completed VCAL you made the decision to enter an apprenticeship, and you undertook a placement.
32During this period, you became preoccupied with your social peer group and became increasingly drawn to substances, finding in particular that alcohol and later mushrooms and ecstasy boosted your confidence. From around the age of 18 you were using ecstasy and magic mushrooms on a regular weekend basis. Your polysubstance use intensified during your first two years of your apprenticeship. You ended up losing your job as a result of your lateness and inattention, ‘secondary to hangovers from weekend binge use of substances’.
33You ended up doing some casual labouring before being offered another apprenticeship. You returned to TAFE and full-time employment as an apprentice. You remained with your employer for a total of 8 years, until you were 28 years of age. You completed your apprenticeship, and you are a qualified plumber.
34From the ages of 18-23 your drug use further developed and escalated. You started experimenting with ice and began using the drug weekly, in addition to ecstasy, cannabis and alcohol. You also started using Valium to manage the withdrawal symptoms. Within this period you had a relationship of some 5 years come to an end, which compounded your drug use. You stopped using ice and moved onto other drugs, including cocaine and then a few years later you started experimenting with GHB for the first time, describing it to Mr Armstrong as being like your ‘kryptonite’ – it removed the anxiety you felt and countered any withdrawal like symptoms that occurred in the aftermath of heavy weekend binge use. It also allowed you to keep working, despite heavy drug use. By your mid to late 20s you had relapsed into using ice again and your GHB use also escalated. From the age of 28 you were engaged in heavy polysubstance abuse.
35As a result of your apparent drug use, your employer suspended you for 4 weeks and informed your parents. You agreed to return to stay with your parents and managed to stay off drugs for this period, promising that you wouldn’t use. Within weeks of returning to work you relapsed. A few weeks later, when your ongoing use was apparent, you were fired.
36After losing your job in September 2022 you obtained labouring work, then another full-time maintenance plumbing job in April 2023 until your arrest in September 2024. You reported to Mr Armstrong that for the 18 months leading up to your arrest you obtained 4 hours sleep per night on average, induced by Valium, otherwise you were using at least 50mls of GHB, approximately 3-5 mls hourly, with up to 1 gram of ice.
37Upon your arrest you told Mr Armstrong that you were in shock for about 1-2 days. You entered what was ‘most likely withdrawal syndrome’; you couldn’t sleep for days and were overwhelmed with fatigue and started responding to delirium induced paranoia. You were placed in isolation for some 10 days and then medicated. Your paranoia soon subsided and you were returned to the mainstream population.
38You were remanded on 11 September 2024 for approximately one month, before being bailed to the Cottage.
39Mr Armstrong had you complete the Minnesota Multiphasic Personality Inventory, which is a broad test designed to assess a number of the major patterns of personality and psychological disorders. While there were tendences to overreport, the results were valid and indicated a profile common with depression and substance abuse. Your intellectual functioning was assessed as within the average range. You presented with features of a Dependent Personality Disorder. He diagnosed you with Substance Use Disorders in early remission. Now clean of substances and having to reconcile your circumstances, he opines that you have deteriorated into a Major Depressive Disorder. He notes that you are on antidepressant medication, with little positive effect, and that he referred you for further follow up treatment, including for ongoing psychological treatment with Ms Tracey Allen. I note that you are now linked in with Ms Allen and your first appointment was scheduled for the 5 August 2025. Overall, Mr Armstrong considers that you are ‘a vulnerable offender.’ You are clinically depressed, ‘not functioning normally’ and he expressed a concern that your depressive symptoms will worsen if you are incarcerated. Your antidepressant medication is not having therapeutic effect and he does not consider that you will be able to access the same level of care within a custodial setting. He also observes that your rehabilitative efforts will likely be hampered in prison.
40Drawing upon the report of Mr Armstrong your Counsel relies on limbs 5 and 6 of Verdins[3]. The prosecution do not accept that Mr Armstrong’s opinions enliven Verdins considerations and submit that some of his opinions are predicated on assumptions made as to the quality and nature of care and/or treatment available in prison. I am prepared to accept that your major depressive disorder may mean that a term of imprisonment will weigh more heavily on you than it would on a person in ‘normal health’ given the opinion of Mr Armstrong that your medication is largely ineffectual and there’s a risk of depressive symptoms worsening in custody. In respect of limb 6, I do not consider that the material before the Court supports that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
41You do not have a formal criminal history. For completeness I note that you report receiving previous police diversions for drug related matters. On all occasions you were apparently arrested by police whilst at Festivals and within a context of heavy drug intoxication.
42Returning to your arrest and remand, subsequently on 11 October 2024 you were bailed to The Cottage for a 12-week residential rehabilitation program. This was your first attempt engaging in AOD treatment. The letter from the Cottage of 9 October 2024 provides an outline of the program, which is structured into Three Phases. The initial 4 weeks involve compulsory morning check-ins, drug screens twice weekly, administration of medication and compulsory meetings, educational and therapeutic workshops and groups. Also, no personal phones are permitted or visitors. Stage two (week 4-10) involves similar programs but include eligibility for off-site day leave, an allowance of a personal phone and a structured visitor regime. Phase three (week 10-12) also involves similar structures but caters for further independence as reflected in the ability of a resident to leave the premises alone.
43You remained an inpatient at the Cottage for around 3 months, then moved to their ‘Transitional Housing’. Your engagement at the Cottage was described in positive terms. The letter of the general manager, Mr Aaron Gilhooley, states ‘[Milford] has shown a firm commitment to his recovery from substance abuse and to taking every opportunity to adhere to feedback given around turning his life around.’ The letter also confirms that you submitted, and produced, clear urine screens (letter 12 February 2025).
44As submitted by your Counsel I take this period into account and I assess it against what is known about the structure and limitations of the program. You will be credited for it consistent with the approach confirmed in the case of Akoka v The Queen[4] .

45In the first week at the community placement, on 9 February 2025 you were excited from the program in the context of a lapse/relapse. Apparently breaking up with a short-term girlfriend was a catalyst for the lapse/relapse and your bail was varied to permit you to reside with your parents in Eildon, on conditions. In his letter Mr Gilhooley continues, ‘Whilst we were disappointed in the circumstances in which lead to [Milford’s] discharge we think if he continues to engage with positive services [Milford] will be able to continue his sobriety.’
46On 12 February 2025 you commenced the 18-week Living Free Program in the community, with AOD Counsellor Ms Maria Hutchinson. You have fully participated in the program and have provided clean weekly urine screens. In her most recent letter to the Court Ms Hutchinson confirms that you attended all 18 Monday night zoom check in sessions and 15 one-on-one counselling sessions with her and weekly workshops. She considers that you have ‘embraced the opportunity of learning a new way of living and thinking and that [you] appear to have taken clear and genuine steps to ensure that [you do] not return to [your] illicit substance use and associated lifestyle.’ She also confirms that you have undertaken and produced clear weekly urine screens. Further, you have been pro-active with your mental health, seeking advice and medication from your local GP to deal with depression.
47You also have engaged in treatment and counselling with Adaptive Coaching and in his letters to the Court, Timothy Ridgeway, outlines your participation (21 July2025 and 12 February 2025)).
48As to your general circumstances, I also note here that your Counsel raised that the present case received some previous media attention that suggested your location and that you were robed at home sometime after this.

Matters relevant to the Drug and Alcohol Treatment Court Determination Hearing

[3] R v Verdins [2007] VSCA 102.

[4] [2017] VSCA 214.

On your behalf your Counsel submits that the Court should impose a Drug and Alcohol Treatment Order (‘DATO’). The prosecution submit that it is not open to the Court to sentence you to a DATO as there is insufficient sentencing scope in the proposed order to give proper effect to the necessary sentencing principles and purposes in this case.
The purposes of a DATO are outlined in s.18X of the Sentencing Act 1991 (‘the Act’) and are to facilitate your rehabilitation, to take account of your drug or alcohol dependency and to reduce the level of criminality and health risks associated with this dependency. In considering whether to make such an Order, I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation, as having greater importance than other sentencing purposes such as denunciation and general deterrence. Clearly however, given the nature and extent of this offending, general deterrence and denunciation in particular, remain important considerations.
The criteria for the making of a DATO are set out in s18Z of the Sentencing Act 1991.
It is not disputed and I accept on the balance of probabilities that you were dependent on drugs at the time, which contributed to the offending. I take into account the admissions you made in your interview with the police. During your various assessments you also indicated that you were trafficking to support your substance use of around $1000 per week and you report heavy, daily drug use[5] . The DATC Clinical Advisor Report notes a score of 39 out of 44 on the Drug Use Disorders Identification Test, indicating that you were likely to have been heavily dependent on drugs in the 12 months prior to arrest, and opines that you satisfy the criteria for a diagnosis of Stimulant Use Disorder that was severe at the time of the offending.
[5] See DATC case management treatment report, at [18].
The dispute between the parties centres on whether there is adequate sentencing scope; that is, whether a total effective sentence of 4 years or less is appropriate. The prosecution submit that the offending is punishable by a term of imprisonment comprising of a head sentence and non-parole period and having regard to the likely sentence to be imposed, you are ineligible for a DATO. Your Counsel submits that when regard is had to the relevant statistics and case law, along with all of the mitigating factors in your case, the sentence of imprisonment range falls ‘comfortably below the 4 years imprisonment’ threshold.
I have considered all the comparable cases provided by Counsel, along with the sentencing snapshots (snapshot 291). In their table of cases the prosecution refer to Sharbell v R[6]. The applicant pleaded guilty to an attempt to traffick in 6.1 kilograms of 1, 4 butanediol and other offences, including two counts of being non-prohibited person possessing a handgun. He was sentenced to four years on the attempt to trafficking charge and a total effective term of 5 years and 3 months imprisonment. The applicant had no prior history or drug dependence. The Court referred to the principles emerging from the case of Gregory (a pseudonym) v R[7] and Ellis v The Queen[8]. It referred to Ellis and its review of sentences for commercial quantity trafficking of 1,4 butanediol which revealed that they ranged from two and a half years to five years imprisonment. The Court found that it was therefore ‘not reasonably arguable that the present was outside the range available in the circumstances of the case’ (at [67].)
[6] [2018] VSCA.
[7] [2017] VSCA 151.
[8] [2018] VSCA 221.
The prosecution also referred to a range of intermediate decisions, including DPP v Sepe[9], DPP v Wang[10] and DPP v Bridges[11]. In Sepe the accused pleaded guilty to one charge of commercial quantity drug trafficking, 14.6 litres of 1,4 Butanediol (charge 1) and a charge of trafficking methamphetamine, 220.5 grams (charge 2), over a one month period. On Charge one he was sentenced to 3 years and 9 months imprisonment and on charge two six months imprisonment, with 3 months cumulative, totalling a period of 4 years imprisonment. The Court accepted that the accused offended to finance his own drug habit. The accused had a relevant prior criminal history, including for trafficking in amphetamine and dealing with proceeds of crime, which had attracted a combination sentence. Since his release on bail the accused had engaged with Odyssey and made changes to his life.
[9] [2017] VCC 698.
[10] [2019] VCC 907.
[11] [2018] VCC 1566.
In Wang the accused pleaded guilty to one charge of trafficking in a commercial quantity of 1,4 butanediol. Authorities intercepted two mail articles addressed to the accused which contained four bottles of the drug. A further search of the accused bag located a fifth bottle. The total quantity of 1,4 butanediol was 9.19kg, with a wholesale value of $9000. The accused was sentenced to a period of 4 years imprisonment. The accused was sentenced on the basis that he was to act as a delivery facilitator and would be paid $2000 in cash. The Court found that he was prepared to engage in ‘subterfuge’ which involved passing himself off with a false identity and liaising with other offenders in order to facilitate delivery of the drug for financial reward. As for his personal circumstances, he had no prior history, no drug addiction, made admissions and was at risk of deportation. In respect of the latter however, I note that the court did not give this weight as the accused had ‘no legitimate expectation of being able to remain here in the first place’ (at [14]).
In Bridges, the accused pleaded guilty to seven charges, including trafficking in a commercial quantity of 1, 4 butanediol in the amount of 15.4 kg over a 3 month period and 4 charges of trafficking simpliciter on a single date. On charge 1, the accused was sentenced to 2 years and 9 months imprisonment. On the trafficking charges he was sentenced to an aggregate term of 12 months imprisonment. After ordering 3 months cumulation, the total effective term was 3 years imprisonment. The accused was 24 years of age at the time of offending, had a drug history, a limited criminal history of driving matters, and he was considered to have ‘relatively good’ prospects of rehabilitation.
Your Counsel referred to the cases of DPP v Fatho[12] and Arici v R[13] and the intermediate decision of DPP v Serevetas[14]. She also referred to a decision of the Drug Court in Gabriel Porter[15] though this case relates to a charge of trafficking simpliciter.
[12] [2019] VSCA 311.
[13] [2019] VSCA 228.
[14] [2019] VCC 2253.
[15] [2021] VCC 2171.
Your Counsel notes that in Fatho[16] the first accused (Fatho) trafficked in 700 times the commercial quantity of 1,4 butanediol and was sentenced to 4 years and 6 months imprisonment. The second (Van) and third (Huynh) accused trafficked in 250 times the commercial quantity and they received sentences of respectively 2.6 years and a combination sentence.
[16] [2019] VSCA 311.
The Court of Appeal decision records that Fatho was 23 at the time, had a relevant prior criminal history and committed the offences while on bail. The Court of Appeal allowed the Director’s appeal and resentenced Fatho to 8 years imprisonment. The second accused Van faced a simpliciter trafficking charge and a charge of conspiracy to traffick a commercial quantity as it related to 525 kilograms of 1,4 butanediol, that is 260 times the commercial quantity. He also had a relevant prior criminal history, including for trafficking. The Court of Appeal set aside the sentence of 2 and a half years and resentenced him to 5 years on the relevant charge. The third accused Huynh faced two charges of trafficking simpliciter and one charge of conspiracy to traffick in a commercial quantity. He was described as a ‘heavy and addicted drug user’. He underwent a 9 month period of intensive residential rehabilitation. He had no prior criminal history. The Court of Appeal considered that his case was ‘materially different’. In particular, he had no prior convictions; he had not offended while on bail; and he had already made remarkable progress in his rehabilitation. The appeal in the case against Huynh was dismissed.
In Arici v The Queen[17] the appellant pleaded guilty to the principal charges of trafficking in a commercial quantity of 1,4 Butanediol in the amount of 74.5 kg and trafficking in a commercial quantity of methylamphetamine (442.7g). On appeal his sentence on the CQ trafficking in 1,4 Butanediol was reduced to 3 years imprisonment. In allowing the appeal the Court made clear that it was not suggesting that the original sentence imposed (4 years on this particular charge) was excessive. The appellant had an intellectual disability and the original sentence imposed was reduced for reasons of parity.
[17] [2019] VSCA 228.
The cases have provided a useful guide but of course there are differences in offending and the circumstances of each offender. None of the cases stand as precedents for current sentencing purposes and each case needs to be decided on its own facts.
After carefully considering, balancing and weighing all the relevant sentencing considerations, including the gravity of your offending, the general sentencing landscape, the cases referred to by Counsel, the maximum penalties, your early plea of guilty and your lack of prior criminal history, I have concluded that there is adequate scope to sentence you to a DATO. While I consider that the only just and appropriate sentence in your case is a substantial term of imprisonment, a term of no more than four years can adequately reflect the need for general deterrence, specific deterrence, community protection and denunciation.
Pursuant to s.18Z(3) of the Act I must not make a DATO unless satisfied in all the circumstances that it is appropriate to do so. This involves a consideration of your suitability for an intensive order such as a DATO. I have also considered the clinical advisor assessment report of 1 July 2025 and the case management assessment report of 30 June 2025. The clinical advisor report suggests that a less onerous disposition may be appropriate and suggests that if a DATO is considered that a psychological assessment should first be undertaken. I note that at the time of writing the report of Mr Armstrong was not available but has since been provided. There are otherwise no impediments noted in the report and your primary motivation to engage in a DATO was to ‘access support in the community to work towards maintaining [your] current abstinence’. The case manager report canvasses your current living arrangements. Presently you reside with your uncle in Carrum Downs and there is some concern as to the distance of travel. You advised that you would attend Drug Court House as required and are comfortable catching public transport. You also detailed that your objective is to move closer to the CBD to prepare and assist in your future work goals. I also note your familiarity with this region, as prior to your placement in residential treatment your usual place of residence, and connection, was in Prahran. Overall, you presented as forthcoming and motivated in your assessment with the case manager and you were assessed as suitable for a DATO.
I have also had regard to the individual treatment plan, which has been devised by the DATC clinical team in conjunction with those named in the plan as your care team.
Relevant also to this issue is a broader consideration of your rehabilitative prospects. Both the prosecution and defence submit, and I accept, that you have positive prospects of rehabilitation. The prosecution however submit that your prospects hinge upon your ability to maintain open engagement with drug rehabilitation and mental health supports, as well as avoiding negative peer associations. Your Counsel submits that you have made exceptional progress in your rehabilitation.
In my assessment of your prospects I take into account a range of matters, including the following: your lack of any prior criminal history; your positive work history as a plumber; your positive engagement and compliance with AOD and mental health treatment since your release on bail; your strong family support and your demonstrated insight into the impact of your addiction.
You expressed to Mr Armstrong that you believe you have benefited from drug treatment, have no desire to use and do not experience cravings. You are experiencing however an ‘overwhelming regret’ for your offending and your long-term drug use. On a review of your treatment documents and your presentation, Mr Armstrong considers that you have ‘genuinely made a gallant attempt at rehabilitation’ but there is still ‘a relatively long way to go.’ He states that you comprehend that you need ongoing treatment and that you have insight; as he puts it, you understand that ‘some of [your] current experience of misery is a legacy of sobriety’. He considers that you are ‘treatment ready to enter engagement with the Drug Court, however [you] will need the specialised input from a psychologist and psychiatrist during the interim period and potentially beyond.’
Having considered the criteria for the making of a DATO as set out in s.18Z of the Act, and all of the relevant reports and submissions, as I previously ruled, I am satisfied that it is appropriate in all the circumstances to make a DATO in your case. On all the evidence and based on your sustained and demonstrated commitment to your recovery, I consider that this order is appropriate and can adequately reflect the denunciatory objectives of sentencing. The order is rigorous and onerous and it will ensure that you continue to remain accountable and through its specialist and targeted therapeutic interventions it will support you in taking personal responsibility for your self-management and control.

Drug and Alcohol Treatment Order

Synthesising all relevant matters, I consider that the only just and appropriate sentence is a term of imprisonment. You are convicted and placed upon a Drug and Alcohol Treatment Order (DATO). This order commences today.
A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts which are as follows:
The core conditions, which are that you (s.18ZF):
(a)   must not commit, whether in or outside Victoria, another offence punishable on conviction by imprisonment; and
(b)   must attend the Drug Court when required by the Drug Court to do so; and
(c)   must report to a Melbourne Drug Court House or other specified place within 2 clear working days after the order is made; and
(d)   must undergo treatment for drug or alcohol dependency as specified in the order or by the Drug Court.
(e)   report to an accept visits from a member(s) of the Drug Court.
(f)    must give notice of any change of address within 2 clear working days before the change to a specified Drug Court officer,
(g)   must not leave Victoria without the permission of the Drug Court.
(h)   must obey all lawful instructions from the Drug Court Team.
73The core conditions will operate for 40 months or until further order.
74The program conditions, are as follows:
(a)   comply with the individualised treatment plan dated 6 August 2025 and signed by you on 11 August 2025.
(b)   submit to drug or alcohol testing specified in the order as directed; and
(c)   submit to detoxification or other treatment specified in the order (whether or not residential in nature) as directed; and
(d)   attend vocational, educational, employment or other programs as directed; and
(e)   submit to medical, psychiatric or psychological treatment as directed;
(f)    participate in a neuropsychological assessment to assess for any cognitive issues; and
(g)   reside at [omitted] until further order or as directed otherwise;
(h)   comply with a curfew that you remain at the nominated address between 9:00PM and 6:00AM. This curfew is required until further order.
(i)    do or not do anything else that the Drug Court considers necessary or appropriate concerning:
(i) your drug and alcohol dependency; and
(ii) the personal factors that the Drug Court considers contributed to your criminal behaviour.
(j)    Not use a drug of dependence without lawful authorisation.
(k)   Abstain from alcohol.
(l)    Not to drive or operate a motor vehicle.
75These program conditions will operate for two years or until further Order.
76The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed on an order, and it is a term of imprisonment of 40 months. This is not to be served unless the Court orders this to occur.

Sentence

77This term is comprised of the following individual sentences:
78On Charge 1, you are convicted and sentenced to three years' imprisonment.
79On Charge 2, you are convicted and sentenced to 16 months' imprisonment.
80On the summary rolled-up charge of 18 to 20, you are convicted and fined $300, and then summary charge 21, which is the proceeds charge, you are convicted and sentenced to two months' imprisonment
81Charge 1 is the base sentence and I cumulate 4 months of the sentence on charge 2. That arrives at a total effective sentence of 3 years and 4 months imprisonment (40 months).
82Pursuant to s.18 I declare that you have served 30 days as pre-sentence detention.
83Pursuant to s.6AAA but for your plea I would have sentenced you to 4 years and 10 months imprisonment with a minimum non-parole period of 3 years imprisonment.
84I make the disposal and forfeiture orders in the terms sought, unopposed.

[2025] VCC 1146

11 August 2025