Director of Public Prosecutions v Gioffre
[2025] VCC 269
•13 March 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR-24-00539
Indictment No. P12569083
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON ANTHONY GIOFFRE |
---
JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Geelong |
DATE OF HEARING: | 11 March 2025 |
DATE OF SENTENCE: | 13 March 2025 |
CASE MAY BE CITED AS: | DPP v Gioffre |
MEDIUM NEUTRAL CITATION: | [2025] VCC 269 |
REASONS FOR SENTENCE
---
Subject: Trafficking in a Commercial Quantity of drug of dependence (methylamphetamine 290 grams mixed weight; approx 80% pure). Approx 4x Commercia Quantity by pure measure; Possess drug of dependence, possess firearm contrary to Firearm Prohibition Order. Knowingly deal with proceeds of crime. $160,000 cash. Summary offences: possess prohibited weapon; fail to comply with direction. Possess ammunition. 37 years of age at sentence. Early plea. Related prior criminal history; two prison sentences in this Court since 2013 for trafficking the same drug.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A McKenry | Office of Public Prosecutions |
For the Accused | Mr J Barrera (at Plea) Mr S O’Connell (at Sentence) | Geelong Lawyers, Barristers & Solicitors |
HIS HONOUR:
1Jason Anthony Gioffre, you have pleaded guilty to trafficking in a commercial quantity of a drug of dependence namely methamphetamine, possession of a drug of dependence being testosterone and trenbolone, possession of a firearm contrary to a Firearm Prohibition Order (‘FPO’) and knowingly dealing with the proceeds of crime. There are also three summary offences being possession of prohibited weapons, a rolled up charge pertaining to five weapons, one charge of failure to comply with a direction to provide a passcode and finally there is a charge of possession of some ammunition.
2The maximum penalties have been correctly spelt out to me either in the Crown written summary or the oral submissions. I will not set them all out. The commercial quantity trafficking charge is punishable by a maximum of 25 years imprisonment. The proceeds of crime charge has a 15 year maximum and the firearms matter has a 10 year maximum. It was accepted by your counsel, Mr Barrera, that the higher maximum penalty applies for the possession of drug charge (Charge 3). He conceded that he did not seek to bring you within the lower penalty provision given the burden that exists upon you to satisfy the court that the possession of that drug was not committed for any purpose related to trafficking.
3You are now 37 years of age and regrettably, you have a highly relevant criminal history.
4The matter was opened to me by the prosecutor Mr McKenry on Tuesday of this week in accordance with a quite lengthy written opening dated 7 March 2025. That document was marked as Exhibit A on the plea. Mr Barrera told me that this was an agreed opening. There is no need then for me to set out all of the factual details in my reasons for sentence. I will sentence in accordance with that agreed document and what is incorporated by it, for instance the many photographs within the depositions and also the statement of analysis that is contained within the materials.
5I will however say something briefly about the facts so that my sentencing remarks and the ultimate sentences might be understood by anyone who happens to access them.
6The agreed summary says at the time you were unemployed. That might be true in terms of you having no legitimate source of income or of not having a conventional 9 to 5 occupation. The truth is of course that on this day, you were a drug trafficker, as you have been in the past.
7On the afternoon in question, police in Geelong pulled you over in the hire car you were driving and they then discussed the Firearm Prohibition Order which was then current.
8A search was conducted of the car and then your unit in Belmont. It was a virtual Aladdin’s cave. I’m not going to set out all that was found within your unit. The summary does that and the photographs are helpful as well. You had drugs, so the steroids that are the subject of Charge 3 and the methylamphetamine the subject of Charge 1. You had a number of phones. You had bags and rubber bands and you had cash in various places. You had knuckle duster flick-knives and knuckle dusters. They were in a hidden drawer. See pp196 and 129 for the close up of those weapons. You had a number of hidden drawers and compartments containing some of these items. You had 3D printed handguns, also some memory cards. Those 3D printed firearms do not form part of the firearms charge and so I make plain I do not have regard to them when dealing with you on the firearms matter, which is Charge 2 on the indictment.
9One black bag located in a hidden compartment contained a large amount of cash ($53,000) as well as an operational firearm and a silencer and loaded magazines.
10You had a money counting machine. That is seen in the photograph at p133. You had a currency binding machine, something I have not seen before. That is a machine designed to bind up what would be described in the television series Breaking Bad as the 'fat stacks' of cash. See photograph at p159. Another black bag in another hidden apartment had some of those 'fat stacks'; $100,000 of them in cash. You had self-adhesive currency straps. See 155.
11In the formal interview you declined to give the passwords to your phones hence one of the summary matters. The other two summary matters pertain to the ammunition, and the knuckledusters and knuckleduster flick-knives
12All up then, there was $161,610 cash and 290.5 grams of ice by mixed weight. The certificate of analysis at p253.2 spells out the quantities but also the purity of the drug.
13With the exception of one quantity of 14.4 grams at 74 per cent (item 29) and one quantity of 30.7 grams at 5 per cent purity (item 25), purity fell between 81 per cent and 88 per cent. You had 55 grams pure in just one of those items, item 28. You had 36 grams pure in item 21 alone, and 29 grams pure in item 17. Just those three items account for 121 grams pure but of course you had more than that. Even if we deduct the 30.7 grams from the total and applied that lower percentage of 74 per cent to the remaining balance it would result in a pure weight of close to 200 grams. It was higher of course as the 74 per cent purity related only to one item. As I say, the others ranged from 81 to 88 per cent. This was well over the commercial quantity by pure weight obviously enough, about four times that measure. It was also of course over the mixed weight threshold of 250 grams. You also had the quantities of the other drug the subject of the possession charge, a total of 28.4 grams of steroid.
14You made what was essentially a no comment interview as was your right. You have been in custody since your arrest.
15The summary sets out the listing chronology of the matter. You were committed straight hand up brief to this Court on 9 April 2024. You pleaded not guilty at that stage.
16So much then for what is really only a brief summary of the lengthy summary in this case. I will sentence on the basis of that more complete agreed factual statement and the documents incorporated by that summary including as I have said the various photographs and the certificate of analysis.
17This was undoubtedly serious offending. As I have said already, Charge 1 carries a maximum penalty of 25 years' imprisonment. It is plain that you have not been deterred by two sentences imposed previously in this Court for drug trafficking; five years was imposed by Judge Mullally in 2013 for offending that had taken place in 2012. I understand that you served all of that sentence to be released on 19 December 2017 and yet by May of the following year, May 2018 you were then committing the offences for which you were given four years by Judge Bourke in April 2019. As I understand it you were released on parole on 14 September 2020, but parole was cancelled on 25 February 2021, and I was informed by Mr Barrera that you were then released at the lapse of that sentence on 13 July 2022.
18Here you are again in December 2024 engaged in similar activity but regrettably with an escalation. This time the Court is dealing with a commercial quantity.
19You really have no claim for much leniency though of course I must recognise and in a material fashion the fact that at least you have pleaded guilty and at an early stage. I see no need to mark the sentencing remarks of Judge Bourke or the Court of Appeal decision flowing from that sentence. They give a very decent sense of the scale of your past offending and the chronology of that offending. I will return to discuss that in a bit more detail later in these reasons.
In Mitigation
20Your counsel Mr Barerra conducted his customarily very thorough plea on your behalf on Tuesday of this week. He relied upon a written outline of plea submissions dated 6 March as well as a report from a psychologist Dr Matthew Barth. There was a bundle of course or educational results or completion certificates, a letter from ReStart, as well as letters from two of your sisters and your mother. Mr Barrera referred me to two other sentences imposed by other Judges in other cases. He really was not suggesting they were on all fours. In fact, when I examined those other sentences they were not comparable at all.
21In his very detailed plea, either by reference to the written materials that had been filed or by way of the oral submissions supplementing the written materials, he told me of your family and personal background. He took me to your educational, employment and relationship history as well as to your history of drug use. He made some submissions as to the steps that you have taken in custody and as to your prospects of rehabilitation. He did not apply any extravagant adjectives to describe those prospects and nor should he have. What he was seeking to convince me of was that your prospects were not altogether extinguished in this case.
22He made some submissions as to the objective seriousness of the offending and some submissions as to your role and also as to the impact of totality of sentence. He conceded this was your own operation and that though the trafficking was confined to the date in question, he was not suggesting that it was so isolated as that. He recognized the difficulties thrown up by the Court of Appeal decision of Quah[1] in relation to any submission as to trafficking relating to a single date. He made it clear that all he was really saying was that it would have been a feature of aggravation had there been a between dates period alleged and there was not here.
[1]Quah v The Queen [2021] VSCA 164 (“Quah”)
23He relied upon the following matters:
· your early guilty plea;
· the presence of some remorse;
· Your disadvantaged early background and the application of the principles from Bugmy[2] in a general fashion;
· Some increased burden flowing from your being separated from your two teenage daughters and the impact upon you of that.
[2]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
24He conceded the inevitability of a prison term and one obviously of a dimension where a non-parole period would also be required.
Prosecution
25Mr McKenry who appeared on behalf of the Director of Public Prosecutions, made some submissions as to sentence. The Crown did not accept that the plea was made at the very earliest stage. The prosecutor referred the Court to the decision in the Court of Appeal[3] where you unsuccessfully appealed the sentence of Judge Bourke imposed back in 2019. The Court of Appeal decision, the prosecutor argued, gave an insight into the two past matters including matters that had then been urged upon the court. The Crown referred also to the case of Gregory[4] and some observations of the Court of Appeal in that case as to inadequate current sentencing practices for the crime of commercial quantity trafficking as well as some observations by that Court as to the sorts of sentences potentially on offer in the future and the matters that might lead to those dire outcomes spoken of, in particular in this case, your role being the person in charge and your highly relevant criminal record.
[3]Jason Gioffre v The Queen [2020] VSCA 177
[4]Gregory (a pseudonym) v The Queen [2017] VSCA 151 (‘Gregory’)
Background
26I will turn now to your background; I am going to do that relatively briefly. I have no particular reason not to accept many of the details of your family and personal background placed before me. For that reason I just see no need to set it all out in great detail. These reasons will be long enough as is. It is in fact set out in some detail in the report of Dr Barth as well as in the written submissions.
27The claim is there was some disadvantage in your formative years. This is mostly based on your instructions either to Mr Barrera or to Dr Barth. There is though also some reference to this in your mother's letter, also in your sisters' letters. The disadvantage is also spoken of in the past sentencing decisions, Mr Barrera raised that with me, but of course that was in the face of material then presented to those other Judges. I have to make my judgements on the material presented on this plea.
28Your parents separated when you were about three and that relationship had been conflicted, with your mother leaving your father and taking you to Albury without your father knowing. I was told that your mother had several other partners and children to some of them, and that she had some issues with alcohol. I am told you were exposed to violence from some of your mother's partners and that you and your half siblings were removed from your mother's care by the Department of Human Services or equivalent. That you were placed into your father's care. I was told you did not have a strong relationship with your father and that there were issues with your stepbrother. Your father was described to me as being quite dismissive of you. You felt unsupported and your mother speaks of this at length in her thoughtful reference. You absconded from the family home and you started using drugs quite early on. On the schooling front, you attended several schools and it would seem you struggled academically.
29You have had a relatively patchy employment history. See the expert report at para 16. That fact was conceded by your counsel.
30You are working as a cleaning billet in custody. You have done some courses including a certificate in welding.
31As to relationships, your main relationship was with Jess when you were about 19 years of age and you were together for seven or so years. You had two daughters who are now 14 and 16. You and Jess have separated. You are single. You still have contact with your daughters, and you are understandably concerned about the impact of prison upon that relationship. I do not ignore that but it cannot be a large matter in my task as was readily conceded by Mr Barrera.
32The drug history is set out in that expert report at paragraphs 21 to 23. Drugs have been really problematic for you and yet you traffick in them and not at a low level. There have been some periods of depression but there is nothing in the report enlivening any of the principles from the well-known case of Verdins. That was explicitly conceded by Mr Barrera and correctly so. The conditions spoken of though are of course still relevant in a general fashion.
33I mentioned earlier your prior criminal history. That was in fact the total history. So those two past appearances. I want to make it very clear that you do not fall to be sentenced a second time for any of that past offending. You received those sentences and you served them. That criminal history does not aggravate this offending or relieve me of the requirement to pass a proportionate sentence in this case. However, I do need to make judgments as to your prospects of rehabilitation and the risk of reoffence and the need to deter you and also the need to protect the community from you. I must try to assess your moral culpability. Plainly your criminal record since 2013 has relevance in this regard. It is very problematic in that you seemingly do not learn the lessons or have not to this point. You have trafficked over a three-week period in 2012. You were 26 years of age. Paragraph 7 to 11 of that decision that I have referred to spell out the details of that trafficking. It was serious indeed, but it was a ‘simpliciter’ charge, that is not involving a commercial quantity, despite involving between 270 and 370 grams of methylamphetamine. You had over $300,000 in cash being the proceeds of crime. You had a sawn-off shotgun and a revolver. I note that back in 2012, the thresholds for commercial quantity were far higher. Back then it was 100 grams pure or 500 grams mixed. They have since been halved. Judge Mullally who sentenced you back in 2013 found you were a significant player in the supply of methylamphetamine in Geelong. I should say that his sentence was imposed on a ‘simpliciter basis’, that is in relation to a
non-commercial quantity, and years before the decision of Gregory which was discussed on the plea. It was imposed in a very different setting. It was imposed upon a much younger man one who at the time was a first offender before him. I note also that the full effect of Gregory would not have been clear to
Judge Bourke when he sentenced you in 2019. Even had it been, he was not dealing with you for commercial quantity trafficking in any event. So those past sentences imposed upon you say nothing as to the sentence required in this case.34Within months of your release from prison in December 2017 you were at it again in May 2018. This time as a 32-year-old. Despite service of that next sentence, here you were again as a 36-year-old, this time trafficking in a commercial quantity and dealing in the proceeds of crime and this time breaching a Firearm Prohibition Order. I plainly must protect the community from you and I plainly must try again to deter you from future offending.
35I have dealt only quite briefly with your background. I do not pretend that I have covered every detail that has been placed before me or which is referred to in the written materials placed before me, including that expert report. Plainly enough from your sisters' letters and your mother's letter, you are far more than just the person who has committed these offences. I accept that. They speak of your many qualities including being a good father. I do not lose sight of that or of what they have written. I take those letters into account. I must say though, reference to having high moral values and acting with strong integrity in your dealings within the community have to be seriously questioned given your criminal history and this actual offending.
36As to your background, an offender's circumstances and their experience during their childhood in their formative years has to be considered in the sentencing task, not just out of some historical curiosity, but because the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences and they can sometimes explain, but not excuse, the offending. Taking lifelong damage that is the result of childhood exposure to violence, or abuse, or neglect into account when sentencing is simply the mark of a humane society.
37Mr Barrera made it plain that he was relying upon the principles derived from the High Court case of Bugmy which you heard discussed, principles which have been re-stated in a number of cases since, including the case of Herrmann[5] . Mr Barrera made it clear that he was relying upon those principles in the general fashion described in that case law and in discussions with the Bench, he said he was not suggesting that your background was anything near as deprived as those we often enough see. He said it was just a matter of degree.
[5]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
38The application of these principles does not depend upon proof of some causal connection between a background and the offending. Nor is there the need to establish disadvantage to a particular standard. I must say I see far sorrier backgrounds than yours on a pretty regular basis. Yours was not an ideal background by any stretch of the imagination, but the reality is that we seldom see ideal backgrounds for those who sit in the dock
39I am though satisfied to the required standard that your background was disadvantaged to a degree. That there was a level of dysfunction and instability in your developmental years. There was some exposure to violence. There was early drug use. There was disconnection from your father and also there was educational instability. Yours was not an enviable background, I would put it in those terms. I give it full weight in the way in which that phrase is employed in the case law, including cases of Bugmy, Herrmann and Sabatucci[6], Newton[7] and Dhal[8].
[6]Sabbatucci v The Queen [2021] VSCA 340
[7]Newton (a pseudonym) v The King [2023] VSCA 22
[8]Dhal v The King [2023] VSCA 289
40I take your background into account, as far as I am able to, including as giving rise to some very modest reduction in your culpability. The case law makes it clear enough though that social disadvantage will not attract the same weight in every case, or in the same fashion. The weight to be given to disadvantage will depend on the nature and the extent of that disadvantage, the nexus, if any, with the offending, though no causal link is required, and also of course the nature of the crime or crimes. Also, the relative importance in a particular case of sentencing considerations, things such as deterrence, community protection and rehabilitation. See the case of Terrick[9]. Our backgrounds obviously leave their mark and yours no doubt has upon you. It might in some way explain the faltering trajectory of your life including early resort to drug use. Drug use was however not being put forward on a mitigatory basis here and it is not.
[9]DPP v Terrick [2009] VSCA 220
41You are now 37 years of age. You were 36 at the time of these crimes. You just keep trafficking in drugs despite prison sentences being imposed upon you. This was serious offending. There are limits to the application of these Bugmy principles. I apply them though to my task and I do take into account your background as far as I am able to.
The report of Dr Barth
42I turn then to the report from Dr Barth but I will do that quite briefly. I am not going to dwell on it. I have already incorporated detail from that report as to your background. I accept his opinions as to the current diagnoses. So too the submissions that I can take those matters into account in a general fashion which I do. It is not a particularly cheery report in terms of the outlook for the future. He, the author, is guarded. He says that ‘even with an optimal treatment regime, you face a lengthy and arduous task if you are to have any realistic prospect of reforming your life’. I take the report into account. Other than the Bugmy reduction which I have spoken of a short time ago, there is nothing within that report or elsewhere in the materials which in any way reduces your moral culpability for this offending. There can be no doubt, there is none at all in my mind, that you knew exactly what you were doing. You knew that you were committing serious crimes indeed which if caught would lead you back to prison for a very substantial period. You made a choice, the same choice you have made in the past, a bad one, but no one forced you to make that choice. You took a calculated risk and of course you must now pay the price.
Guilty plea
43Let me turn then to some of the other matters raised on your behalf. The first of those matters is your guilty plea. You have pleaded guilty. There was some discussion on the plea as to whether the plea was one made at the very earliest opportunity. Mr Barrera submitted that it was. The Crown argued that was not the position at all. I do not believe that it was a plea made at the very earliest opportunity. You pleaded not guilty when committed to this Court. Once up in this Court, you initially offered to plead to a simpliciter or non-commercial trafficking charge and that plea was rejected. There were further discussions on that topic. There were also some issues in terms of a charge of possession of a trafficable quantity of firearms and the 3D printed weapons. The chronology was spelt out to me and it is set out in some of the documents and I do not want to get too bogged down in all of this. Your plea was made at what I will treat as a very early stage of these proceedings, and I take that into account in your favour. The matter was after all never booked in for a committal. You came straight hand up brief up to this Court and that was then the setting for these negotiations that I have just spoken of.
44You have undoubtedly facilitated the course of justice. You have taken that very early responsibility for your crimes. The community has accordingly been saved all the time, cost and effort associated with a committal being conducted in the Magistrates' Court or a trial being conducted up in this Court. Witnesses have not been required to give evidence in either court. There is a utilitarian benefit in pleading guilty in the way that you have. I take into account your early guilty plea and I will pass a lesser sentence owing to these various factors that I have mentioned.
Remorse
45I turn then to the issue of remorse. Mr Barrera argued that there was some remorse to be implied from your guilty plea as well as that which was spoken of in the three letters placed before me. A guilty plea is often, but not always, indicative of at least some level of remorse. The case against you of course was an overwhelming one. That fact does not in any way detract from the value afforded to your guilty plea. I have already spoken of those allowances, and they are in no way dependent on whether or not I can find the presence of remorse in this case. I do not conflate the two matters. However, in the face of such a strong case as this, what can actually be inferred from your guilty plea? Here you were again committing the same style of serious offence. A gun in breach of the Firearm Prohibition Order. More drugs, cash, weapons. How often can one commit calculated offences such as these, and get caught and then say 'I regret committing that crime'?
46I do have your efforts in custody. You are working and you are doing some courses and certificates. That is at least something. I also have the letters from your family. I do not doubt you regret being in custody, of course you do and not purely for selfish reasons. You know that you will be missing out on things going on in the lives of people who are important to you such as your daughters and your grandmother for that matter. You have regret for what you have lost and also for not doing more when at large in the community but those things do not equate to remorse for the commission of these crimes.
47Three letters have been placed before me and they are a bit sad to read. These are those from your sisters and from your mother. Your family are obviously concerned for your plight in custody. They speak of their observations of your distress. They also speak of your regret for the crimes as well as your regret for what you have lost.
48Having considered the matter afresh since the plea including those letters from those family members, I am ultimately prepared to find that there is some remorse in this case and I do take that into account in mitigation.
Increased burden.
49I mentioned earlier, I do not ignore the fact that you will be separated from your 14 and 16 year old daughters. It was not being suggested that there was any third-party hardship upon them, arising from you being in prison. That sort of thing would require something pretty exceptional before it could be actually taken into account by a court. Rather it was the loss felt by you, the impact upon you of that loss as you served this prison term. That is, not being part of their lives as they headed towards adulthood. Well that will not be easy for you but of course it was a very predictable outcome if you chose to commit offences at this level of seriousness and were caught. I do not doubt it will go into the mix and make your sentence a bit more burdensome but there would scarcely be a prisoner who could not point to a relationship being strained or lost as result of being imprisoned and that having some impact upon the service of their sentence. It is as I say, simply an inevitable consequence of being locked up. I believe there can be only a very modest allowance in your case for that impact upon your sentence.
Rehabilitation
50I turn then to your prospects of rehabilitation. I can be quite brief. Those prospects are not strong. Not at all. You were not some silly teenager committing his first offence. You are yet again before this Court for the third time in a dozen years. Each time trafficking in methylamphetamine. This despite the past two terms of imprisonment, release and reoffending, this time with an escalation in that this time you trafficked a commercial quantity of the very same drug. You had a loaded firearm and silencer and cash. You do at least have some family support but you have had that for years. It has not put a brake on your offending. Nor the making of a Firearm Prohibition Order. I hope that the substantial sentence I must impose will have some role in deterring you but no doubt the last two judges felt the same hope. I am not at all optimistic. The report of Dr Barth is hardly encouraging. I quoted from that earlier. Your counsel was submitting that you had some prospects of rehabilitation. That they were not at an end. I do accept that submission. I do not say that you have no prospects at all. However, I have to be realistic. Currently viewed those prospects are really quite poor. I hope I am wrong. I will not write you off and say you have no prospects, but there is nothing too encouraging to latch onto. A mature man continuing to seriously offend despite being sent to prison for significant periods. Yet again before this Court. Yet again taking what was a calculated risk. Yet again doing this for reward.
The Offences
51I turn then to the offences.
52The basis of the commercial quantity trafficking in this case is that you were in possession for sale on the day in question. Mr Barrera said this was your operation with no one above you. He conceded really that you were the principal in that it was your undertaking, your operation. Given what I have before me in terms of the drug weight and purity and some of the other items found, you were unmistakably in this to make sizeable amounts of money. Who needs a currency counter and a currency binding machine?
53Again, I make it plain, for the trafficking charge, I am dealing with you for these drugs possessed for sale on the date on which they were found, not for any earlier illegal conduct. I do however have the proceeds of crime offence. You knowingly dealt with $160,000 of cash which you knew to be the proceeds of crime. As a matter of fact then, you had that cash in your possession on the day in question. There can be no suggestion that financial need or your drug addiction in any way drove this trafficking exercise. Nor for one moment was Mr Barrera making that submission on the plea.
54As I said in the course of the discussions on the plea, you are a mile removed from those unfortunate addicts who are caught up in a miserable, if not pitiable existence, of small-scale trafficking to support their own habit. In a way, need and not greed is on display in those cases and in that sort of setting, there is the absence of the aggravating feature of financial gain. That is to say, the absence of greed. Moral culpability may be reduced in such a setting as that, and for obvious reasons. That is not the character of your trafficking at all. I am satisfied beyond reasonable doubt there is only one reason to be committing a trafficking at this level and that is with a view to making large financial reward.
55I have to make judgment as to the gravity of your offending. As to the trafficking in a commercial quantity, the weight of the drug is a fixed matter. Here you had 290 grams by mixed weight so not that far over the commercial quantity threshold. However, given the purity of the drug, it was very comfortably over the pure weight threshold, about four times the pure weight commercial quantity threshold.
56The quantity of drug is undoubtedly always an important consideration. It is not however the only or even necessarily the most important matter. Often enough though the quantity of the drug is the only matter distinguishing one case from another.
57It is no part of my task to concern myself with the harmfulness of the given drugs. This is a quantitative-based regime. I do note however that in Haddara[10] the Court of Appeal spoke of the prevalence of the offence of trafficking in methylamphetamine and the need for the Courts to elevate general deterrence in the sentencing task.
[10]Haddara v The Queen [2016] VSCA 168
58Duration is what it is, one day. On 5 December 2023, you were trafficking in a commercial quantity of methylamphetamine, as you were on that day in possession of that drug for sale.
59It is clear that for the trafficking, you do not fall to be sentenced for events before that date, even though your own counsel acknowledges that your conduct on
5 December cannot be viewed as so isolated. It is not mitigatory that you are in possession for sale on the day of your arrest. You stand to be sentenced for trafficking on that date and that is very often the case when a drug is seized as it was here. There are statements in the Court of Appeal decision of Quah[11] as to some of the common fallacies surroundings submissions as to single date trafficking. See para 37-47 of that decision. The Court of Appeal said that what matters is not the duration -short or long- of the offender's possession for sale, but its character. Really, Mr Barrera acknowledged those statements and said that it would be worse if it was a between dates period. I am sure that must be so. For a start there would be a greater quantity trafficked.[11]Quah v The Queen [2021] VSCA 164 at [37] to [47]
60Sometimes there is a duration of offending alleged as there was in your first trafficking dealt with back in 2013. In that case, there were some handwritten notes recording sales found in a suitcase. See para 8(f) of that Court of Appeal decision. Sometimes there might be physical surveillance or phone intercepts or listening devices. There might be a documentary trail. There might even be evidence from a co‑accused spelling out the duration of offending. There might be covert purchases. There might and sometimes is analysis of texts on a mobile phone recovered. Here of course there were many mobile phones recovered from you. You declined to provide your passcodes.
61Here I have the warrant and I have the search. I am not dealing with a between dates charge. But I have everything else found on that day including the secret or hidden drawers, the currency counter and the currency binding machine.
62It was acknowledged that this was your operation.
63As I have said, financial gain undoubtedly was the motivation for your offending. Greed, not need. There is nothing before me suggesting that you cannot do honest work if you choose to. You just do not make that choice.
64Your moral culpability for this offending is high. You were a mature man yet again committing what you knew were serious crimes.
65The proceeds of crime offence is itself a serious enough example of the offence relating as it does to over $160,000 cash. It is serious offending. They were the proceeds of crime and you knowingly dealt in those proceeds as you did back in 2012 when you possessed over $300,000 in cash as a 26 year old.
66The drug possession charge, Charge 3, is obviously less serious and the summary offences less serious still.
67The firearms matter is however a serious charge indeed. You have those two relevant convictions from the 2013 appearance.
68In the slightly different setting of a charge of possession of a traffickable quantity of firearms, the Court of Appeal in the case of Djemal[12] considered the purposes of the Firearms Act and said the following:
The purposes of that Act are to give effect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licensing them, and for the regulation of their possession, carriage and use, for dealing in them and acquiring and disposing of them, and for their registration and secure storage.
[12]Djemal v The Queen [2020] VSCA 25
69Now I am not dealing with you for possession of a trafficable quantity of weapons. Nor am I dealing with you for having unregistered general category handguns as Judge Mullally did back in 2013.
70I am dealing with a single weapon but one which you possessed in breach of a Firearms Prohibition Order, a very different provision indeed.
71The Court of Appeal in a case of Kumas[13] said the following:
The persistence of such offending in the face of successive convictions underlined how important it was that the sentences imposed on MK for the present firearms offences be set at a level which might actually deter him. That point was reinforced emphatically by MK’s wilful disobeying of the firearms prohibition order which was served on him on 14 November 2018. Under that order, he was prohibited from acquiring, possessing or using any firearm or firearm-related items.
[13]DPP v Kumas [2021] VSCA 215 (‘Kumas’)
72They went onto say:
As this Court said in Chief Commissioner of Police v Websdale, the power to make a firearms prohibition order is conferred for the protection of the public. The Court said:‘[T]he public interest to which these provisions were directed was the public interest in keeping the community safe from firearms-related violence. This is, in other words, a power conferred — and exercisable — for the promotion and maintenance of ‘public safety and peace’.[37]
It was, accordingly, a matter of great significance to this sentencing exercise that MK embarked on offences of dealing in, and possession of, firearms within weeks of having been served with the firearms prohibition order. His deliberate defiance of an order put in place for reasons of public safety significantly increased his culpability for these offences and highlighted the need for specific deterrence and community protection.
73The sentences at first instance in that case were then significantly increased by the Court of Appeal. I refer also to a later case of Bruce[14] from 2022, which spells out the seriousness of the offence of breaching a Firearm Prohibition Order and the reasons why that is so. Far greater sentences were imposed in that decision of Bruce.
[14]Bruce v The Queen [2022] VSCA 100 (‘Bruce’)
74I am dealing with you for a single firearm. The Firearms Prohibition Order prohibited you from possessing any firearm or related item. These orders are made for reasons, and those reasons are spelt out in the document itself. See Firearm Prohibition Order at p236 of the depositions. That document was served on you. You would have been a prohibited person in any event, given your criminal history and the recency of a prison term for an indictable offence.
75But this was an actual order served on you. Served on you on 24 December 2020 explicitly spelling out the prohibition upon you and making clear that there were these expanded powers of search and the like available to the police. It spelt out the penalties for breaching the order. There was a whole page of information including the maximum penalties for breaching that order.
76That order expired a decade later. You were just deliberately flouting this order. This offending, this possession of this weapon, cannot have been spontaneous. The firearm was possessed by you in your unit in a backpack with more than $50,000 cash, loaded magazines and the silencer, all in one of your hidden compartments.
77It was a serious example of an inherently serious offence.
Purposes
78I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose and I do not ignore it. Your sister Keely speaks of that purpose, and the importance of it and the seeming futility of longer and longer sentences being imposed upon you. She speaks of your deserving an opportunity to demonstrate that you can change for the better. You are before this Court for the third time. The other letters have a similar theme. It is understandable that family members will feel this way. I am not in any way being critical of them. Why wouldn’t they focus on you and what they think is best for you? Of course they would.
79But rehabilitation is but one of many purposes and I believe your prospects are really quite poor. They must surrender sizable ground to other sentencing purposes in this sentencing exercise.
80I am required to punish you justly and proportionately. Punishment is clearly an important sentencing purpose here.
81I must also denounce your conduct. That too is obviously important.
82Community protection is of real importance given the nature of some of these crimes and your past history before the court. I must protect the community from you.
83Then there is the need for deterrence. Deterrence looms large in this sentencing task. I must try to deter you. Not just you though, but others as well, from offending in the future.
84Specific deterrence relates to the need to deter you. It is plainly a powerful purpose of sentencing. Courts have tried now on two occasions to deter you from offending. Those efforts have failed and here you are older and yet your offending has to an extent escalated. I must try again to drive home the message to you. Do not traffick in drugs. Do not deal with the proceeds of crime. Do not breach a Firearm Prohibition Order.
85Then there is general deterrence and that is an important purpose of sentencing.
86Illegal drugs have had a devastating impact on our community. Drugs cause untold misery to the many who use them and to the families of those many who do use them. They destroy lives. Those who make the decision to traffick in drugs at the level that you did cannot expect much by way of leniency.
87People such as you who traffick in drugs at this level are always taking a calculated risk. You were. People hope that the potential financial rewards on offer, the large rewards, will justify the taking of that risk. Of course, they hope not to be caught. You knew that you were playing a very high stakes game here.
88The seriousness with which Parliament regards drug trafficking can be gleaned from the very large maximum penalties provided for. I have said already, Charge 1 is punishable by a 25-year maximum term of imprisonment.
89The courts through the sentences imposed seek to deter future like‑minded offenders from committing these serious offences. To have them factor in the risks, risks that perhaps for them might overshadow the rewards and hopefully have them turn away from committing the offence, in a way that you did not.
90Then there is the firearms offence. The need for general deterrence is surely plain in relation to that matter. People who are subject to these orders, they must understand these are serious orders and breaching one comes with very serious consequences indeed.
91I am required to pay regard to current sentencing practices. That is not a single controlling factor.
92I have looked at the relevant portions of the Judicial College of Victoria Sentencing Manual Case Summaries for some of these offences.
93In the course of the plea I raised the case of Gregory[15] and each party addressed me on that decision.
[15]Gregory (a pseudonym) v The Queen [2017] VSCA 151 (“Gregory”)
94I have also looked at the Sentencing Advisory Council online data for the three major matters being Charges 1, 2 and 4.
95Statistical material is always of very limited value, if any. Such data in relation to the commercial quantity charge must be treated with further caution given that the statements of the Court of Appeal in Gregory and cases beyond might not have been reflected in that data given the period in which those sentences have been imposed. That cautionary note is attached to the Judicial College of Victoria case collection.
96The Court of Appeal concluded in that decision of Gregory that the current sentencing practices for serious examples of commercial quantity trafficking were simply inadequate. It follows then that there has to be some caution in looking at sentences imposed prior to that decision or even for cases postdating the decision where there has been no reference to that case. There has to be caution exercised in looking at the data contained in the statistics from sentences which might predate that decision or predate the known effect of that decision in later sentences. I note for instance that neither case to which I was referred by Mr Barrera had any reference to the case of Gregory.
97The Court of Appeal in that decision of Gregory identified features which would lead to the expectation of sentences for commercial quantity trafficking advancing well into double figures. See paragraph 98 of the decision. One factor was if the quantity was close to the large commercial quantity. Another was if there was a finding that a person had a role in charge, or there was a lengthy duration of offending, or a person had relevant prior convictions or had been convicted after a trial. There were a variety of matters which the Court of Appeal said would lead to far greater sentences being imposed in the future in serious examples of that crime.
98They went on to say that had they not been constrained, as they then thought they were, by current sentencing practice, that a sentence of 13 to 15 years would have been within range on a guilty plea in that case in relation to a person who was also genuinely remorseful. These were very high numbers indeed and they signalled a very different range of sentences into the future for some commercial quantity traffickers. Not all but some. Now Gregory involved a between dates period, there was a sophisticated distribution network with violence and threats aplenty and interstate trips and with 226 grams pure located and a quantity of at least 500 grams all up including that 226 grams. I do not believe that he had any relevant prior matters at all for the Court at
para 45 said that his criminal history was assessed by the judge as being 'a relatively minor one' see para 45 Gregory. Now I am not suggesting for one moment that your trafficking is at the same level as disclosed in Gregory. Plainly, it does not fall at that level. But you were in charge, this was your operation and you, unlike Gregory, have a highly relevant prior criminal history.99I should also say that at the time of Gregory the commercial quantity thresholds were higher. They were 500 grams mixed and 100 grams pure. They have since been halved in relation to this drug.
100The case of Gregory has been followed and affirmed in many cases since, including the DPP v Fatho[16] and Huynh[17], Sharbell[18] and Condo[19]. I have referred already to the case of Quah, which dealt at length with the ramifications of Gregory for some instances of commercial quantity trafficking and also the 'knock on effect' for the crime of large commercial quantity trafficking. That knock on effect was mentioned in the case of Rahmani.[20] Of course I am not dealing with you for a large commercial quantity trafficking.
[16]Director of Public Prosecutions v Aysar Fatho [2019] VSCA 311
[17] [2019] VSCA 311
[18]Sharbell v The Queen [2018] VSCA 324
[19]DPP v Condo [2019] VSCA 181
[20]Shahin Rahmani v The Queen [2021] VSCA 51
101I have mentioned the statistics but statistics are just numbers, they have inherent limitations. They do not assist me. Nor do other sentences actually greatly assist me either. The two which were provided by Mr Barrera were in no way comparable. One had no prior criminal history at all. The other had no relevant prior criminal history. One of them had serious physical health issues that were going to greatly increase his burden of imprisonment; he had end stage kidney disease and very good prospects of rehabilitation, and he had been particularly co-operative with the police. See the case of Sazimanoski. The other had no prior history at all and reasonable to good prospects.
102There were many differences in matters in mitigation and in aggravation. Differences in matters personal to the given accused. Nor was the sentence imposed upon either of those other offenders the only available sentence open to the court. There is no such thing as one correct sentence.
103Another Judge might have imposed a greater or a lesser sentence upon that person and not in any way fallen into error. Those decisions represent no more than an example of a sentence imposed in another case by another Judge. Another offender committing other crimes sentenced by another Judge. Those outcomes say next to nothing about the appropriate sentence required in your case. The weight given to the various sentencing purposes would be driven by the particular findings made in the particular case, as they are in this case.
104Of far greater importance than past instances of actual sentences imposed are matters of principle referred to within some of the case law. There are many such statements of principle in the cases to which I have referred including Gregory and Quah.
105My task is to sentence you for your crimes. That is not a mathematical or a statistical task or one where the outcome is driven by what has happened in another case or cases, or even the outcome in your past appearances before this Court. Those appearances were for offending committed when you were younger, when you were 26 and had no prior convictions at the time of the first appearance. Neither of those appearances related to commercial quantity amounts. They each had therefore the much lower maximum penalty. The statements from the case of Gregory apply to my sentencing task. That case was not in play at all on those earlier occasions, it had not even been decided until 2017, and had no application to the 2019 sentencing exercise given the charge that you then faced.
106I do take into account the submissions made by your counsel and those made by the prosecution. I take into account all the written material that has been filed in the course of the plea.
107Prison is always a disposition of last resort. Your counsel conceded the inevitability of a prison outcome here and one requiring the fixing of a
non-parole period. Plainly that outcome was inevitable.108I have to proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the likelihood of early release on parole. I am required by law to fix a non-parole period. It is however the Adult Parole Board which will make the decision as to whether you can be released on parole. That has nothing to do with me.
Totality
109I take into account the principle of totality of sentence.
110I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your overall criminality here was high. The most serious offence is the commercial quantity trafficking charge for the reasons that I have announced to date. However, Charge 2 is itself a serious offence in its own right. I have not treated the possession of that firearm as aggravating the trafficking charge. In its own right, Charge 2 was a serious offence and can be disconnected from the trafficking There was a discrete and a serious prohibition created by the Firearm Prohibition Order. You deliberately breached that order and in a serious fashion given the nature of that firearm. That order could have been breached by the possession by you of a 'related item'. It did not require an operational weapon. This was a serious example of that offence. There must be significant cumulation.
111Finally, there is the proceeds of crime offence. Well, it is not connected to the trafficking or the firearms offence. The trafficking that I am dealing with pertains to possession for future sale. The trafficking charge is not a between dates offence from whence it is said those proceeds of crime have sprung. There is not that relationship between the trafficking and the proceeds offence as sometimes might exist. So again, there must be meaningful cumulation in terms of sentence.
112Charge 3, the possession of drug charge, has no relationship to the other drug. That is a charge of possession of a different drug.
113As to the summary offences, well they frankly are the least of your problems. You refused to provide the PIN code but you did that in the setting of this warrant having been executed. You made that refusal after you had time to consider your position. It was obviously a calculated decision. That refusal was one made in the formal police interview.
114You possessed five obviously nasty prohibited weapons, and you possessed the ammunition.
115Totality is obviously a significant consideration here. There is a temporal relationship between the offences. They are all committed on the same day. I must be awake to the need to avoid double punishment.
116I have engaged in a last look at the overall effect of the sentences imposed by this Court and I have done that to guard against the imposition of a crushing term upon you. However, a very sizeable prison term is simply unavoidable here. That is just the sad reality of you making a decision, a choice, that is what it was, to offend in the serious way that you have and with the backdrop of those two previous sentences for related offending which have in no way curbed your offending.
117The maximum penalty provided for in the Drugs Poisons and Controlled Substances Act and the statements in Gregory make abundantly clear that life altering sentences may well await those who choose to engage in commercial quantity trafficking when committed at certain levels or with certain features, including a relevant history. Though I do not for one moment suggest that you are on all fours with Gregory, plainly you are not in terms of the between dates nature of the offending, or violence or network, this was your operation, and one you were running despite the two prison sentences imposed in this Court for trafficking in the very same drug.
118Let me deal with the ancillary orders, if I might.
Disposal
119Application is made for a disposal order under the provisions of the Confiscations Act relating to the various items set out in the schedule. These include the various drugs and paraphernalia. Those items are set out in the schedule.
120There is no opposition to the making of this or the other orders, so I pronounce them in an abbreviated fashion. I am satisfied of those matters I need to be satisfied of, in terms of the relevant provisions in s78. I am satisfied in those circumstances that those items in the schedule should be forfeited to the State and I direct that they be handled in the manner contemplated by that signed order. So that is the disposal order that I have signed and pronounced in this abbreviated fashion.
Forfeiture
121There are also two forfeiture orders. One relates to the firearm, the ammunition and the silencer. I am satisfied that the conditions for the forfeiture of those items is made out pursuant to the relevant provisions of the Firearms Act and I direct that that property be forfeited to the Minister. I have signed that order. Then there is the cash including that additional amount that was the subject of the seizure following the Arunta phone calls between you and your mother. There is no opposition to that amount being added to the forfeiture order. I asked explicitly and was told that. I am satisfied then that it is appropriate to sign that Order. I am satisfied that this material is amenable to such an order. I order pursuant to s33 of the Confiscations Act that the property referred to, that is that cash be forfeited to the Minister.
122I am sorry to have taken so long to get to this point. I will have you remain seated.
Sentence
123On Charge 1, that is the charge of trafficking in a commercial quantity of methylamphetamine, I convict and sentence you to 10 ½ years' imprisonment. That will be the base sentence.
124On Charge 2, possession of a firearm in breach of a Firearm Prohibition Order, I convict and sentence you to five years' imprisonment.
125On Charge 3, possession of a drug of dependence I convict and sentence you to two months imprisonment.
126On Charge 4, knowingly dealing with the proceeds of crime, I convict and sentence you to three years' imprisonment.
127On the three related summary matters, Charge 13 is not even punishable by a term of imprisonment. On that matter, I convict and fine you the sum of $500.
128On the fail to provide the PIN or passcode related to the phones, I convict and sentence you to five months' imprisonment.
129On the weapons offence which is the rolled up charge relating to those five weapons, I convict and sentence you to three months' imprisonment.
130The base sentence is therefore the 10 ½ years imposed on Charge 1.
Cumulation
131I make the following orders for cumulation of sentence.
132I direct that 21 months of the sentence imposed on Charge 2 and 12 months or one year of the sentence imposed on Charge 4 is to be served cumulatively upon the base sentence and upon each other. I direct also that one month of the sentence imposed on summary offence 8 the weapons matter and two months of the sentence imposed on the failure to provide the passcode will be served cumulatively upon these other sentences I have just pronounced and upon each other.
133The sentence imposed on Charge 3, that is the possession of the steroids, will be served concurrently upon the base and part cumulative sentences.
Total effective sentence
134These orders that I have made as to cumulation produce then a total effective sentence of 13 ½ years' imprisonment.
Non-parole period
135I fix a period of 10 ½ years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
136You have already served 464 days of this sentence by way of pre-sentence detention and that declaration is entered into the records of the Court.
Section 6AAA
137I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have sentenced you to 15 and a half years' imprisonment. I would have fixed a non-parole period of 12 and a half years. That declaration is to be noted into the records of the court.
138Is there anything further I need to attend to or not? Anyone?
139COUNSEL: No, Your Honour.
140HIS HONOUR: In terms of the mathematics of that, do you need me to run through that again?
141MR McKENRY: No, I have that. I agree with the numbers.
142HIS HONOUR: It adds up, all right. So anyway, it is my intended effect is to produce a total effective sentence of 13 and a half years with a non-parole period of 10 and a half years. That completes the matter then. So no doubt you or Mr Barrera will have some sort of conference with Mr Gioffre, Mr O'Connell to discuss what's occurred here today and his rights in relation to the sentence that I have imposed.
143MR O'CONNELL: Yes we will, Your Honour.
144HIS HONOUR: Yes, all right. Do you have any sort of timing of that at all, which you can tell him now, or not?
145MR O'CONNELL: No, Your Honour. At this stage Mr Barrera will be in contact.
146HIS HONOUR: He will, okay, well you have heard that Mr Gioffre, so your legal team will be in contact with you to discuss your rights in relation to the sentence that I have just pronounced.
147Let me just see, I mean he is in custody, he's been in custody for a significant period but I've just imposed a substantial term of imprisonment obviously enough. There's no need for any custody management directions or anything like that?
148MR O'CONNELL: No, Your Honour.
149HIS HONOUR: No, all right. That completes the matter then. So disconnect the link then please, thank you.
150MR McKENRY: As Your Honour pleases.
- - -
.
0
17
0