Director of Public Prosecutions v Griffith

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01678
Indictment No.K10401248.1

DIRECTOR OF PUBLIC PROSECUTIONS

HENRY GRIFFITH

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2020
DATE OF SENTENCE:	28 September 2020
CASE MAY BE CITED AS:	DPP v Griffith
MEDIUM NEUTRAL CITATION:	[2020] VCC 1550

REASONS FOR SENTENCE
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Subject: trafficking in MDMA; possess drug of dependence (three other drugs being anabolic steroids); summary offences: possess prohibited weapons and deal with property suspected of being proceeds of crime ($29,050 cash); No prior convictions. Two subsequent offences committed in period of delay. 20 at time of offence in 2018, 23 as at sentence

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	Office of Public Prosecutions
For the Accused	Mr J. Dickinson QC	Malasecca, Kelly and Zayler

HIS HONOUR:

1Henry Griffith you pleaded guilty last Friday to one charge of trafficking in a drug of dependence (MDMA/ecstasy) and one charge of possession of drugs of dependence (anabolic steroids). You also pleaded guilty to two summary offences being one charge of possess prohibited weapons and one charge of dealing with property suspected of being the proceeds of crime.
2The maximum penalties are correctly set out in the prosecution summary.
3You were born on 4 September 1997 and so were 20 years old at the time of the crimes back in May 2018 and have only recently turned 23. You have no prior criminal history. There are some subsequent matters.
4The matter was opened to me by the prosecutor Mr Porceddu last Friday. He opened in accordance with a written plea opening dated 21 August 2020. Your counsel told me that it was an agreed summary and so it was marked as
Exhibit A.
5As it is an agreed factual statement, I see no purpose in descending chapter and verse into all of the facts. I will sentence in accordance with those agreed facts.
6Just a brief summary of the summary will suffice. On 1 May 2018 you were shot and attended at the Moorabbin Hospital. That is only the context of your room subsequently being searched. You provided no sensible account and then a false account as to how you came to be shot and police went to your house out in Doncaster where you lived with your parents. Your parents provided consent to the search of your room and various drugs and the other items were found within. The summary sets out the various items. Ziplock bags with drugs and capsules. Vials, $29,050 cash and a bag containing
582.1 grams by mixed weight of MDMA/ecstasy. There was a semi-automatic capsule press and scales. So all the accoutrements of trafficking as well as two sets of knuckledusters and a set of handcuffs. Your parents had no knowledge of any of this material found in what was unmistakably your bedroom.
7On 4 May, you attended at the police station and were arrested and interviewed. You chose to provide a no comment interview as was your right. You were charged in February 2019.
8All up, there was 609.1 grams of MDMA or ecstasy by mixed weight. The commercial quantity of that drug is 500 grams (by way of mixed weight) or
[1]Pantorno v R [1989] HCA 18
100 grams pure and so as a matter of fact, you had more than the commercial quantity. I am dealing with you though for a non-commercial or simpliciter charge. You were in possession for sale. Charge 2 relates to three drugs described as anabolic steroids, drugs derived from either testosterone, boldenone or nandrolone, with a combined weight of around 80 grams. I am satisfied that the Pantorno[1] burden has been discharged and that a purpose relating to trafficking is excluded on the balance of probabilities. The Crown has made that concession, a generous one in the setting of the other items found in your possession, but I will act on it. So the lower penalty provision applies in relation to that charge.
9The summary sets out the chronology before the court.
10I have only summarised the facts and I will sentence in accordance with that more comprehensive agreed factual statement.
In Mitigation
11Earlier this morning, a short time ago actually, I raised some concerns that I had about the way the plea had been conducted. Of my learning a fair way into the plea from Mr Dickinson of the fact that there was a subsequent matter of assault. Of not learning at all from the defence team that you also had a subsequently committed offence of possession of a drug. Mr Dickinson had not been told of that matter but learnt of it when I stood the case down to allow the prosecutor to communicate with him. Your solicitor though, knew of the existence of that matter. He in fact had appeared back in November 2019 on your behalf. I have issued some relatively strong words of censure a short time ago in relation to your solicitor. Frankness with the court in this area is critical. One must always err on the side of disclosure. The claim is that there was an oversight.
12What is very plain is that you are not the person making any of those decisions in the way the plea was conducted or the materials provided to counsel. You would, presumably, expect your legal team to conduct themselves appropriately and would have no understanding of their ethical obligations. Your solicitor should. So these matters are in no way held against you. That is to say, the way the issue was mismanaged in the course of the plea. Of course, the fact that you have committed two offences whilst awaiting trial is of relevance to my task as these were offences committed whist on bail to attend this hearing. So the delay and your progress in that period is perhaps not quite as positive as might have been judged to be the position if based on the written outline or at the end of your own counsel’s oral submissions. Anyway, let me leave that unfortunate aspect of the way the case was conducted. It should not have occurred. It did. It should not occur in the future. I move beyond it, for my task is to pass an appropriate sentence upon you and not to be distracted by your solicitor's omissions or oversights.
13Your counsel, Mr Dickinson had prepared detailed written submissions. He took me to your background in some level of detail, a background spelt out in more detail still in the report of Luke Armstrong and in your mother and stepfather’s letter. He placed before the court a large bundle of urine screens as well as some certificates. He made submissions as to the motivation behind your offending. He made submissions as to your rehabilitative prospects and took me to what you have been doing since these events.
14He principally relied upon;
·The guilty plea and stage of that plea;
·The presence of remorse;
·Your youth and excellent prospects of rehabilitation;
·An increased burden of imprisonment courtesy of the response to the COVID-19 virus;
·The delay in the finalisation of this matter and your efforts in that period.

15He called Mr Armstrong to give evidence on the plea. Mr Dickinson argued that a standalone community correction order was open in this case.
Prosecution
16The prosecutor Mr Porceddu argued on behalf of the Director of Public Prosecutions that a standalone community corrections order was not open in the circumstances of this case. The Director called for a term of imprisonment but conceded that a combination type order was open. There were some brief written submissions which were marked as Exhibit B and which were actually pretty uncontroversial, dealing with the aspects of the offence seriousness here including the quantity of the drug. He supplemented the written submissions with some brief oral submissions. It was submitted that you were a principal and that the materials were not suggestive of a person trafficking to support their own habit.
Background
17I turn now to your background.
18Your background was set out to some extent in the written outline as well as in greater detail in the report of Mr Armstrong and your parent’s letter. I have no reason not to accept the background placed before me and see no utility in restating it all. I interpose, it was an unusual and pretty unsatisfactory early background but your background does not really explain your offending. It may have a role to play in your use of drugs but not this decision to traffick in them.
19Very briefly then, you are now 23 years old and with no prior convictions but those two subsequent matters I have spoken of. I take into account the absence of prior convictions. As I follow it, your parents had separated either before your birth or shortly after it. You were the second son of that relationship and were born in New Zealand. I asked directly and your counsel enquired of you and was told that you are an Australian Citizen, so risk of deportation is not a matter of any concern in this case. As I understand it, you have never met your biological father. You moved with your mother and brother to China when still an infant. There, your mother’s family offered some support to her. In fact, your mother then left China and came to Melbourne to study and to work. You and your brother stayed on with your mother’s extended family until you were about 4 years of age. You did not enjoy the experience and it has had real impact upon you in terms of a sense of belonging, connection and also a fear or dread of separation. Your brother left China before you did. You were then reunited with your mother and brother. By then, your mother had formed a relationship with Ian, now your stepfather. That new chapter of your life started when you were around 4 years of age. They went on to have two children of their relationship and those children are now 16 and 12.
20You were educated at the local primary school, then at Ivanhoe grammar for a number of years. You finished up doing your VCE at Balwyn High School. You went on to RMIT doing a business course which you did not complete. You then did a real estate licence course which you completed and you have also done one year of a two year building course at RMIT. That is deferred this year. You hope to qualify and then hopefully find an apprenticeship as an electrician, after doing a pre-apprenticeship course.
21You describe your home life as chaotic and dysfunctional. Well, no family is perfect. You were a good deal luckier than very many who sit in that dock, I suspect. You had a home, parents who no doubt loved and supported you and who understood the importance of educational opportunities and decent schooling. You really can’t blame your background for your bad decision to traffick in drugs.
22You have had a variety of unskilled jobs. Recently you have been helping out in family businesses, either a cleaning business or an “Airbnb” business. Your brother has had some serious mental health issues, seemingly with drug use heavily implicated. He is in prison awaiting his trial. You have a girlfriend. I learnt in the piecemeal fashion of the fact of the assault in September last year and the existence of the intervention order. That relationship is perhaps not as solid as it seemed on paper but it is ongoing.
23Drugs have been a major problem for very many years. You have used a variety of different drugs including steroids, cannabis, ice, ecstasy and cocaine.
24You still live at home and life, it would seem, has improved immeasurably since the time of this offending. I am not going to summarise in this portion of my sentence your efforts since being bailed. It is plain that you have used the time well, especially the time from April or thereabouts of last year. You have had very regular counselling with Ms Brown who is most impressed by your efforts and your developing insight. You have had a large number of drug screens which support the view that you have on the whole, been drug free. There have been just a handful of slip ups since your release on bail. Slip ups are not at all unusual. It would have been preferable for her to have been informed of any subsequent Court appearances and it seems likely that she was not.
25You have goals for the future and hope to regain the trajectory of your life. So there are some big positives dwelling in the efforts you have made since this offending, things spoken of in the reports of Mr Armstrong and Ms Brown and in your parent’s letter. You and your parents hope that your efforts at rehabilitation will not be interrupted. You dread the prospect of being sent to prison.
26Let me turn then to the other matters raised in mitigation.
Guilty plea
27You have pleaded guilty. The drugs were found in the early hours of 2 May 2018 after you had been shot the night before and deposited at the hospital, in the way described in the summary. You were interviewed on 4 May and declined to comment as was your right. On 13 February 2019 you were charged with commercial quantity trafficking as well as the other charges. The matter came straight hand up brief to this Court and you pleaded not guilty but even before then, you had already offered to plead guilty to all the matters you ultimately have pleaded to. That offer was made before the first committal mention in May 2019 and rejected by the prosecution then, and later.
28I should say that there was nothing strange as to that plea offer being rejected given the quantity of drugs. Nor though was there anything surprising as to the ultimate acceptance of the plea in the same terms, in the face of the COVID-19 disruption of the Court processes. It would have been apparent when
Mr Porceddu came into the matter that it was most unlikely that the October 2020 trial date could be maintained. Though the quantity was over the commercial quantity both by mixed weight and also pure weight, it was not massively over the mixed weight threshold and there was no reason to think you would have any precise knowledge of the purity. Sensibly, it settled and I have regard in your favour to the fact that this has taken place in the currency of the disruption of the Court processes brought about by the COVID-19 virus.
29I am going to treat your plea then as a plea at the earliest opportunity.
30You have admitted your guilt. You have taken this early responsibility for your various crimes. You have in this way facilitated the course of justice. The community has been saved the time, cost and effort associated with a committal in the lower court or a trial up in this court. All the witnesses have been spared the experience of giving evidence. I take these various matters into account in your favour.
Remorse
31You have pleaded guilty at what I have said is the earliest stage. Though not always the position, a guilty plea is often indicative of at least some remorse. I will treat your plea in that fashion here.
32After the plea offer had been rejected and you were committed to this Court, the case took a strange twist. Given the plea offer previously made, a quite unusual defence response was filed on your behalf by senior counsel, denying possession altogether and not admitting that you even occupied the bedroom. He foreshadowed that there was to be a challenge to the legality of the search of the room.
33If I just focussed on that defence response, it would not be that suggestive of much remorse but it was made in the setting of the Crown pressing on with the more serious charge. It was always open to you to admit the lesser charge or even possession of the drug before a jury, but that is not the way you were proceeding. You were endeavouring to exclude the finding of the drugs altogether by challenging the legality of the search and failing that, denying that it was even your room or that you were in possession at all. Very strange stuff indeed. I had a question mark in my mind as to the presence of remorse here but have resolved that in your favour. There is some other material in your dealings with the experts and your family which is suggestive to me of remorse. Also your efforts at rehabilitation. Further, as to that defence response, it was a legal document prepared by your counsel in response to the rejection of the plea offer. Your earliest of plea offers is far more important than this defensive or holding trial document filed on your behalf. So I will find the existence of some remorse here and I do take that into account in mitigation.
COVID-19
34I accept that the COVID-19 virus and the response to it by those running the prisons would increase your prison burden to a degree. Prison is currently a more stressful environment. Prisoners cannot make a decision to self-isolate. Social distancing is not easy. No doubt there is worry about catching the virus in such a setting where there is no level of autonomy. I note you have already had the virus but this does not necessarily mean that you cannot catch the virus again. I believe the jury is out on that topic.
35It is difficult for me to know precisely how the virus or the response to it by those running the prisons would impact upon you in the future, should you be sent to prison. There are some lockdowns but they do not exist across all prisons so I cannot conclude that they would necessarily apply to you in the future. Visits have already been suspended and so have some courses and programs. I cannot know how long those things will persist.
36It is actually impossible for me to forecast the impact of this virus either on those in the community or those in prison. Some cases have been discovered in prison in recent times but not too many. It seems to be quite well contained. There has been a state of disaster declared in this State with a roadmap to reopening but things are looking a good deal more positive at the moment than they were looking as we headed into this phase over 6 weeks ago. Some further relaxations were announced yesterday. As positive as those things are, it still do not suggest to me that there will be any prospects in the short term of the prison conditions being returned to the pre COVID-19 setting. So prison life is tougher for those sent there and more so for one such as you who would be a first time prisoner and a youngish one at that. I would expect there will be less time out of cells, less access to programs and courses and no access to in-person visits for quite some time. Also a 14 day isolation when first received which is a very tough initiation. I accept then that there is an increased custodial burden in your case for the various reasons set out in the second last, and last page of your counsel’s written submissions. I take this into account in your favour.
37I now move to consider your youth and your rehabilitative prospects and the two matters are very closely connected in my view. Delay is also connected up with these topics given your efforts in the period of the delay. Firstly though I move to the aspect of youth.
Youth
38You were only 20 years old at the date of offence and are only recently turned 23. You were not a child or even a silly teenager but you were young and still are young enough. You are a youthful first offender. You have been doing well in the period since the commission date of these offences though perhaps not as well as the written submissions might have suggested. I must say, it would have been more useful if your counsel had flagged in his written submissions as he should have, the fact of the subsequent matter he was awake to and more useful still had he known of the other subsequent matter which went to Court. Instead those matters came out in fits and starts and after the expert had come and gone. None of that though, alters your youth and the weight that is to be given to it.

39Your counsel relies upon your relative youth and refers to a variety of cases. I used to carry around a copy of one of those cases he referred to, the case of Attorney-General v Chmil and Zanoni[2]. I used to carry it in my brief case as a young practitioner. I was involved as a practitioner in the case of Misokka[3], which he also referred to. I appeared in that case when it was before the County Court.
[2]Unreported, Court of Criminal Appeal, 1 August 1977
[3]R v Misokka (Unreported, Court of Appeal, 9 November 1995)
40I am not going to descend to every aspect of the case law. It is not in dispute. The law will generally treat youth as a matter of real importance. Young people are more prone to make mistakes or to act without thinking through the consequences. They are generally speaking, less culpable and the benchmark for sending a youthful first offender to prison is a high one indeed, as it should be. Generally, when dealing with a youthful offender, more weight, even far more weight, is devoted to rehabilitation and less weight is given to punishment and deterrence.
41The cases in this area also recognise the potential corruption of a youthful offender which can and does take place in a prison setting.
42The law recognises the fact that young or youthful offenders are more able and likely to be rehabilitated. They are less set in their ways and there is correctly, a greater optimism as to their potential to rehabilitate. The community has a sizeable stake in the rehabilitation of any offender, but more so in the case of a youthful first offender. The rehabilitation of a youthful first offender serves to protect the community, something recognised in the various cases to which I have been referred.
43The Sentencing Advisory Council (SAC) released a lengthy paper late last year dealing with the complexities of sentencing young adult offenders. See ‘Rethinking Sentencing for Young Adult Offenders’ (SAC, December 2019).
44You are a youthful enough first offender and of course that is a matter of significance.
45The case law makes it clear enough that the weight to be given to youth and rehabilitation will vary from case to case. It is not just automatically applied the same way in every case. Generally speaking, the more serious an offence the less weight will be given to youth and rehabilitation. That is because more weight is devoted to some of the other purposes of sentencing. I apply to my task the principles from the cases including cases such as Mills[4] and Azzopardi[5]. These things were discussed very recently in the Court of Appeal decision of Victorsen[6], delivered late last week.
[4]R v Mills [1998] 4 VR 235
[5]Azzopardi v R [2011] VSCA 372
[6]Victorsen v R [2020] VSCA 248
46Your relative youth is still of real importance to my task and does not exist in a vacuum. It is youth in combination with the materials touching upon your efforts at rehabilitation. Necessarily these things lead to a reduction of the punitive components of sentencing. I do not lose sight of your youth, but regrettably, as a youthful first offender, you have chosen to commit a serious crime indeed. By that I am speaking of the trafficking in particular. General deterrence is usually a matter of real weight in the sentencing task for that crime. Youth and rehabilitation must surrender some ground to the other purposes of sentencing, but as I say, your youth and rehabilitation are still of real importance here.
Rehabilitation
47As to your prospects of rehabilitation, you are young enough and a first offender. That is a very good starting point. You call in aid your past good conduct. You have family support. It might be said you always have, but that is not the way you felt at the time of this offending. Your parents are more of a protective factor than they had been previously. So says Mr Armstrong and I am prepared to act on that opinion.
48You have headed back into study but with the course deferred this year. You have plans for the future. Completion of that course, completion of a pre-apprenticeship course and then hopefully an apprenticeship. I have the positive statements in the two expert reports. Opinions as to the gains you have made, a developing insight and ability to deal with triggers and cravings, of a person with a high level of motivation.
49You have behind you a sizeable period of successful counselling and abstinence. I have the few slips ups disclosed to the experts as well as the subsequent criminal conduct which has been taken to Court late last year.
50You have made a decision to commit an unmistakably serious crime. I am, speaking there of the trafficking. You have done it out of greed, I have no doubt at all about that. I am unable to accept your instructions that this was a crime committed to fund your personal use. That is impossible to accept. That is simply not the nature of this possession for sale given the quantity of drugs, the paraphernalia and the added factor of the cash in your possession.
[7] [2010] VSCA 7 at para [35]
Mr Dickinson seemed to submit that I could pay no regard to the cash. Maybe I am mistaken, but if that is the submission he made, it could not be a sensible submission for two reasons. Firstly, there is a summary charge that you have pleaded guilty to relating to that cash and for which I must pass sentence. Secondly, the cash existed as a matter of fact. Now I am not going to somehow improperly expand the date on the trafficking and infer that the cash is the product of trafficking. 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. However the money surely casts some light on the legitimacy of that explanation that you were trafficking to support your own habit. That you had that financial need. You had the cash to hand, a large amount of it. See the case of Ververis[7]. This was not trafficking to support your own need at all.
51You took a calculated risk and have lost. You have pleaded guilty at a very early stage and have some remorse. The fact of being shot, arrested, charged and awaiting this court outcome will all have a role to play in deterring you. So too the sentence I will soon pronounce. The only reason I am in any way guarded is that you have committed an offence as serious as this trafficking. You succumbed to the lure of easy money and I suppose there is always that future risk. Long term use of drugs always casts something of a cloud over a person's future rehabilitation.
52I also have the fact of offending occurring whilst on bail to come to this Court. The assault and the possession of drug charge that I have discussed. Though one might seriously doubt your account of the drug being just left over from another time given the sniffer dog indicated in relation to you when you were nowhere near your car and the car was a different car to the car you were driving in 2018, that is of no matter. All it represents is a slip up. It would be better if you were providing a truthful description of it but slip ups are hardly strange and you had in fact disclosed some in your dealings with the experts anyway. There is also the assault that took place in September of last year.
53So I have this subsequent offending whilst on bail awaiting this case. However, I am upbeat as to your prospects. I assess those prospects favourably and I believe they are very good. That will be conditional of course on your abstaining from drugs. You have a relatively low risk of reoffending in this way into the future as best as I can presently judge. That is subject to abstaining and that, of course, always involves a level of speculation. The view of the assessment officer who conducted the assessment for the CCO is of a higher level of risk. That probably is viewed presently without making judgements as to the impact of counselling and likely abstinence. If you continued to use drugs, of course, your prospects would plummet.
The expert materials
54I have mentioned the reports of Mr Armstrong and Ms Brown and
Mr Armstrong’s evidence called on the plea. Also the very many drug screens.
55I see no value descending into the fine detail of the reports or the evidence placed before me. Though not explicitly stated, each expert seemingly was prepared to act on your account of trafficking to feed your own habit. Well, I am not satisfied of that on the balance of probabilities at all. Indeed plainly, that is not the setting, but that does not invalidate what they saw or what they say. Each speak positively as to your future prospects. Now Mr Armstrong saw you only on that one occasion earlier this year in August, albeit for a very sizeable period. He acted on your account. His report is valuable in setting out your family background including childhood development, development in adolescence and descent into drug use and the reasons for that. It would seem that you have a dependent personality disorder and that your early childhood would have had a role to play in that developing. There were issues with separation, trust and attachment and even when reunited with your mother, it would seem the damage had been done. Reference is made to a dysfunctional family setting. This is probably news to your parents who maintained a house and a relationship and provided for you but none the less it is the way you felt. You are intelligent enough. As Mr. Armstrong described it, the drug use and the personality disorder are in a way intertwined, with drugs used to offer some solace. You have developing insight and recognise the association between negative peer associations and relapse. He says, things are stable enough presently, with early remission for the substance abuse disorder and stability in relation to the personality disorder. He recommends ongoing treatment and is generally positive as to your prognosis.
56Ms Brown is the treater and has had very many sessions of counselling with you from April of last year. She is impressed by your efforts and says that for a man of your age, you have done very well. You have been suitably upset with any relapse and are insightful and optimistic for the future. She says, you are on a positive trajectory, she says. She says it is rare to see someone who has proven his motivation for change and she hopes to continue working with you.
57I take into account these reports and the evidence placed before me, and I have only really mentioned some aspects of that material.
58I should say, Mr Dickinson was explicit in submitting that none of the material was in any way relied upon in a Verdins[8] fashion. Rathert, it highlighted the importance of treating the underlying issues and the importance of doing so in terms of your ongoing rehabilitation. I take into account those materials.
[8]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581
59I also take into account your parent’s letter. I see no need to descend to the detail of it.
Delay
60I turn now to the aspect of delay.
61Being bailed upon being charged in February of last year might have had disastrous ramifications, if for instance you had continued to very seriously offend. There have been the subsequent matters which occurred on bail which I have discussed. Those matters prevent your counsel from submitting that you have completely stayed out of trouble. You have not. It is regrettable that those offences occurred, but they cannot be allowed to overshadow what you have achieved in the period of the delay since the commission of this offending. You have used your time very well. You have got on with your life as best you can and have had the meaningful and prolonged counselling with Ms Brown. There is more to be done but you have done very well in the course of the delay.
62I must pay regard to your efforts since being bailed over what is a sizeable enough period. Even the efforts prior to being charged. You have made real efforts and have achieved a lot already and you get the benefit of that delay in the sense that it permits me to reach a more favourable view as to your future prospects. You have, in that way, the runs on the board.
63You have also had to live with the dark cloud represented by this case hanging over your head for a decent enough period. You were charged in February of last year and had the Crown accepted your plea offer made before the
May 2019 committal mention, it is possible that your matter may have even been dealt with last year or at the worst, earlier this year. Instead it has resolved amidst the disruption of the court operations brought about by the COVID-19 virus.
64It cannot have been easy for you awaiting this day and you have done your best to move forward. This is not one of those cases where there is some massive delay brought about by some unduly lax investigation or an unduly leisurely approach to the prosecution. You were arrested in May 2018 and no commented as was your right. You were then charged early last year and committed to this court in August of last year after your plea offer was rejected. Ultimately your plea offer was accepted. It is a bit of a shame it was not accepted earlier if it was going to be accepted.
65I take into account the delay in the two manners urged upon me by your counsel. Firstly the delay serving as an added penalty. That is not a massive matter given the periods in play but still I give it some weight. Of far greater importance is your positive progress in the period of the delay which I am able to take into account in so favourably assessing your future prospects as I have. In that way, though the delay would have been unpleasant for you, you do at least get the benefit of it.
The Offences
66I turn then to the offences.
67The trafficking is the most serious of the offences before me by far. It is no minor example of trafficking. Your counsel, by way of mitigation, points to the single date. Well that is the position. I am dealing with you for trafficking founded on possession for sale. Often enough a trafficking will be limited in this way when it is based on arrest or execution of a warrant and not on phone intercepts or covert buys or other forms of electronic surveillance. But the materials you had spell out that there was nothing spontaneous about this offence of trafficking. It was obviously planned and obviously was serious offending. As I said earlier, I am dealing with you for a non-commercial quantity. It is, as we lawyers describe it, a 'simplicter charge' with the lower penalty. I do not lose sight of that fact.
68However as a matter of fact, the quantity of ecstasy exceeded the commercial quantity threshold. This is a quantitative based regime so as simpliciter trafficking goes, it is at the highest margins in terms of quantity. It is obviously a mile from a low level example of the offence of trafficking.
69Nor is there any suggestion it was just being moved on as is by you. You had the capsules and the capsule press, and the drug.
70Quantity will always be a relatively important matter though by no means the only or even the most important factor. It is plainly serious conduct to traffick in drugs at this level. Your counsel chose not to place any submission before me as to exactly what you were up to. How you obtained the drugs, their cost, the expected profit, what was intended with them. On the material before me there was nothing to suggest that you were anything other than the principal and in this for profit. You had a sizeable quantity of the drug, the capsules and the capsule press. Mr Dickinson simply submitted that you had, as he put it, a ‘rampaging habit’ and were doing this to fund your own habit. Though I was not obliged to, as a matter of fairness, I placed your counsel on notice of my provisional doubts on that score. He chose neither to call you or even to place any submissions before me in any of these areas. Just bald statements as to funding your own use. He submitted the cash was irrelevant to the trafficking. It plainly was not and the prosecution submitted that the very fact of its existence debunked the suggestion as to financial need and the motivation for trafficking being to fund your habit. Plainly that is so.
71You have not pointed to anyone above you in any hierarchy and nor is there any evidence of anyone higher up. Your counsel suggested that your being shot was irrelevant. He chose not to place before me any explanation of that event at all. He chose also not to place before me any explanation at all for the cash. Now I do not know whether Mr Dickinson was instructed in those areas and decided not to place instructions before the court or whether you had not given instructions on those topics. It is entirely unimportant. It is your right not to provide detail as to your offending, it is Mr Dickinson’s right to conduct the plea in the way that he sees fit, as it is mine as the sentencing judge to sentence on the basis of the materials placed before me.
72I reject the submissions made as to this trafficking arising out of any personal need or to fund your own use of drugs. At best, your use of drugs can only have had a minimal role to play. You were not acting out of any need or to fund personal use. I am satisfied beyond reasonable doubt that you were acting in the way that you did for profit and sizeable enough profit at that, given the quantity of ecstasy which you possessed. You were taking a calculated risk and the only reduction in your culpability lies in your youth. You were committing what you must have known was an unmistakably serious crime. No doubt you were doing so as a result of the lure of what seemed to be easy money.
73Trafficking in drugs almost always involves an offender taking a calculated risk. The taking of the risk is motivated by the desire for financial reward of some description.
74It is a serious crime to traffick in drugs at any level. As I have said, I am satisfied beyond reasonable doubt that you were engaged in this enterprise, your enterprise, for profit. There is no suggestion you are at some low level of any hierarchy. Your counsel made no such suggestion in the course of his submissions. Indeed on the materials, I am satisfied beyond reasonable doubt it is your business and you are the principal. The possession charge is of course far less serious given the quantity of the steroids, the much lower maximum penalty, the fact that you are charged with possession and my finding that you have discharged your Pantorno[9] burden. Hence the lower penalty provision for possession applies. Your counsel suggested that the handcuffs and the knuckledusters were just toys. Toys held by a man who had the quantities of drugs I have described and who just happened to be shot on the night. Unsurprisingly, I do not accept that submission either. The cash is in a sizeable amount and is suspected of being the proceeds of crime. Your counsel has chosen not to place any explanation at all before the court. That is a serious enough offence in its own right, given the amount of cash.
[9] Ibid.
Purposes
75I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. As I have already pronounced, you are a youthful first offender and your prospects are favourable. You have done a lot already and I have some anxiety in taking any step which might interrupt your forward progress. But I cannot just focus on youth and rehabilitation. If all a judge was required to do was to focus on rehabilitation, sentencing would be far easier, especially in this sort of case of a youthful first offender with favourable prospects. But I am not entitled to just focus on your youth and rehabilitation. There are other sentencing purposes that must be given adequate weight in a case involving this style of trafficking. Rehabilitation must surrender at least some ground to these other purposes.

76I am required to punish you for your crimes. I must do that justly and proportionately. It is an important enough purpose.
77I must also denounce your conduct and that is also important.
78I must pay appropriate weight to specific deterrence and by that, I mean the need to deter you or dissuade you from offending in the future. That can be moderated here given my favourable findings.
79It would be given far more weight as a sentencing purpose if you were for instance, a good deal older or you had relevant history before the courts and had disregarded court orders in the past. But that is not the person I am dealing with. You are a youthful first offender with what I judge to be a low risk of reoffending at this level and the favourable rehabilitative prospects I have already commented on at length. It stands to reason that there can and should be some moderation of specific deterrence.
80For very much the same reasons, community protection can also be moderated. Neither community protection or specific deterrence are irrelevant. I must still have regard to each of these purposes but the weight given to them can be moderated in the setting of this case. Owing to your youth and ongoing rehabilitation, there can be a moderation of the weight given to the punitive and deterrent aspect of sentencing including general deterrence, which I have not yet discussed.
81General deterrence is still however a relevant purpose of sentencing in this case. It is important that this court send a clear message to others in the community who may think it worth considering trafficking in drugs. Drug trafficking is pernicious. It attacks the very fabric of society. See the case of Zarghami[10] The courts must convey the message loud and clear through the sentences imposed that trafficking when brought before the court will be dealt with seriously. People succumb to temptation. They succumb to the lure of what appears to be easy money. It may seem easy but it is not when one factors in the risk, that is the risk of discovery, arrest and then the risk of a sizeable term of imprisonment. The courts have a role in sending the message, a message that will hopefully cause likeminded potential offenders, young and old, to rethink their involvement in this serious crime. Our sentences must cause other likeminded people to pause and to consider the potential ramifications of being caught if they choose to commit this serious style of offence.
[10]Zarghami v R [2020] VSCA 74
82You plainly made the choice to commit this crime of trafficking. It was a very poor one but you knew what you were doing. The possession of the property suspected of being the proceeds of crime is a serious enough example of that offence given the amount of the cash. The weapons offence and the possession of steroids are of course far less serious.
83I must have regard to the maximum penalties.
84I also have to pay regard to current sentencing practices. That is not a single controlling factor. As to the trafficking, I have looked at the relevant Sentencing Snapshot (No. 243 of 2020) as well as overviews of cases from the new
Judicial College of Victoria sentencing manual (7.4.1.1). The statistics disclose that the most common range of sentence where prison was selected fell in the range of two years to less than three years.
85I have looked at the so called comparable cases referred to by the prosecutor. Mr Porceddu conceded that they were selected only with the drug quantity as the common factor. I have read the cases and there are differences all over the shop in terms of conduct, duration and the many features of aggravation and mitigation. Different ages, different rehabilitative prospects. Differences in every domain. I looked also at the case of DPP v Huynh[11] which was quoted so extensively by Mr Dickinson in his written submissions. Again, there were differences in every direction. Huynh had spent a period in prison, followed by a period of over nine months in residential rehabilitation, longer by the time the Court of Appeal came to deal with him as I understand it. It was a very different drug. Though I am not to be making judgements as to the relative harmfulness of particular drugs (see Pidoto[12]) the Court of Appeal explained why such a different attitude had been taken in the sentences imposed for trafficking in the drug GBL. It is the enormous reward differential that has driven those differences in sentencing outcomes.
[11] [2019] VSCA 311
[12]R v Pidoto [2006] VSCA 185
86I was not assisted by any of the cases I was taken to but well recognise the importance of the principles over and above the ultimate sentencing outcome.
87At the end of the day, I am exercising a sentencing discretion in this case. Your case, not some other case. I am sentencing you for your crimes, and that is not some mathematical or statistical task. No amount of looking at other cases or statistics will provide any answer to me. Other cases including those to which I have been referred are not precedents and do not drive my task.
88Statistics have inherent limitations. I am not here to pass sentence based on what has been the most common sentence imposed in the past. I am exercising a sentencing discretion in your case.
Totality
89I have taken a last look at the orders that I intend to make to guard against a crushing outcome and to ensure that the total effect of my sentence is commensurate with your criminality here.
Stand-alone CCO
90Mr Dickinson argued that it was open to place you onto a stand-alone community corrections order. That you could avoid spending a day in prison for this offending. The Director of Public Prosecutions challenged the availability of such an outcome.
91I am not bound by those sentencing submissions made to me by either side. They are arguments placed before me as to penalty and I have regard to them as I do to every argument place before me but as I say, arguments are not binding upon me. I must exercise my own sentencing discretion.
92I have had you assessed for your suitability for a community corrections order and you are judged to be suitable. You are judged to be a high risk of reoffending.
93I mark that assessment report as Exhibit C on the plea. I will also mark the summary provided to me of the subsequent possession of drug offence as Exhibit D.
94I told you on Friday that you must not take any comfort from the fact of the assessment being undertaken or my extending your bail to permit that to take place. I made it as plain as I could that my calling for the report did not signify that I would necessarily release you on such an order either on its own or even in combination with a term of imprisonment. That being sent to prison was one possible outcome, either with eventual release onto a community corrections order or with a non-parole period being fixed.
95I wanted to re-read all of the materials and all of the submissions made to me. I have done so over the weekend and I have considered if it is open to release you onto a standalone community corrections order.
96I have anxiously considered the materials placed before me.
97A judge must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser disposition, one not involving confinement. That is the law. See s.5(4C) of the Sentencing Act.
98Sending any person to prison is genuinely a matter of last resort for any court. It is never a step taken lightly. Sending a youthful first offender to prison, one who has family support and one who has taken the positive steps along the path to rehabilitation which you have taken, is never a step taken lightly or without a sense of regret.
99This sort of case is a hard one for any judge. That is, a youthful first offender who has committed a serious crime. I do not pretend that this is an easy task. It is not.
100Mr Dickinson referred me to the case of Boulton[13].
[13]Boulton & Ors v The Queen [2014] VSCA 342
101The Court of Appeal spoke in that decision of the dramatic change in the sentencing landscape brought about by the availability of what was then the new disposition of a community corrections order, either on its own or as it was at the time of that decision, an order in combination with a prison term of up to two years. That has now been reduced to a one year period and the duration of the term of an available order has also been reduced.
102The Court of Appeal has said on later occasions that the community corrections order disposition is not to be some ‘get out of gaol free card’ to be employed for every crime before every court for every offender.
103That decision of Boulton counselled judges to reconsider and perhaps even to revisit conventional wisdom as to when it is appropriate and necessary to actually gaol an individual. They stated that the sentencing landscape had changed dramatically by reason of that (as it was then) new disposition. The Court of Appeal indicated that sometimes it will be open to place a person on such an order even for offending that previously might have been met with a substantial (or medium) term of imprisonment.
104The precondition though to such an outcome though was if it was appropriate in the particular circumstances of the particular case.
105It is obvious enough that not every offender for every crime can be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by use of such an order.
106So in this case, as in so many cases coming before the court, there are some tensions that exist as between the various purposes of sentencing. That is actually why sentencing is not easy. People may think it is easy but they are wrong. You are a youthful first offender with some impressive material placed before me as to the process of rehabilitation already underway here. You have done very well so far. Your parents have understandable anxieties as to what will happen if you are imprisoned. So do you. You dread it.
107Well, as the sentencing judge, I am understandably anxious about interrupting your forward progress, anxious about the corrupting influences which I know exist in prison, concerned as to how you will cope in such a place and how you might emerge from such an experience. Concerned as to whether the trajectory of your rehabilitation may be impeded, if not lost.
108Undoubtedly though, the trafficking was a serious offence. There is a need to adequately reflect denunciation, punishment and general deterrence. Community protection and specific deterrence can be moderated to a sizeable degree for the reasons I announced earlier.
109Now the case law developing after Boulton made it plain enough that a community corrections order can provide substantial general deterrent effect. It can also be very punitive.
110Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached.
111As a result then, a judge needs to pay careful attention to the purposes for which sentence is to be imposed in the instant case. I have to consider whether they can actually be achieved by a stand-alone community corrections order.
112The Court of Appeal suggested in the case of Boulton that we as judges ask the following question:

'Given that a community corrections order could be imposed for a period of years with conditions attached, which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?'[14]

[14] At para [121]

113Well I believe that I must answer that question in the positive in this case. I do not believe that it falls within my sentencing discretion to place you onto a standalone community corrections order for this offending. I regret to say that this offending demands that you serve a substantial enough term of actual imprisonment. It is in my view simply unavoidable. You have not served one day in custody to this point and the message sent to other offenders by a standalone community corrections order being imposed in this case would be entirely the wrong one, as far as I am concerned.
114I do not believe that such a disposition on its own can meet all the relevant sentencing purposes. As I have said, I have no pre-sentence detention to work with. General deterrence, denunciation and punishment are significant enough purposes here and would not be adequately reflected by such an outcome as that. Especially general deterrence.
115I believe there is no alternative at all other than to impose a term of actual imprisonment upon you. Very commonly for a crime as serious as this instance of trafficking, there would be a head sentence and a non-parole period. I have considered whether it is actually open to combine a prison term with a community corrections order given that the maximum period I have at my disposal in this case is 12 months. Any period beyond that and a combination type sentence would not even be open, as there is no pre-sentence detention.
116I believe though, that owing to the various matters raised in mitigation, it is actually open to admit you to a suitably conditioned community corrections order, which will take effect upon your ultimate release from prison. In that way, I will provide for your guaranteed release. That will probably not seem much to you now as you sit there knowing that you are being sent to prison but you will soon enough learn the advantage conferred by this style of order. It will give you some certainty in your life moving forward. It is the sort of guarantee which does not exist when a court fixes a non-parole period.
117As I have said, often enough for this style of offending, there is a head sentence and a non-parole period and with no ability for the offender to know if he will be released on parole. That decision rests entirely with the Adult Parole Board. There is never any certainty as to whether there will be any release on parole. Well that will not be an issue here for you. You will be released from prison at the lapse of the prison sentence that I am shortly to pronounce.
118Prison will not be easy for you at all. It is not a good time to be sending any person to prison, much less a youthful first offender. I can, in proceeding by way of a combination type order, shorten that exposure to prison whilst providing for your treatment, rehabilitation and ongoing punishment in a less punitive setting upon your eventual release.
119I do not accept that a community corrections order on its own can pay sufficient weight to the need to punish you, deter others and to denounce your conduct. I believe that the term of imprisonment that I propose in conjunction with the suitably conditioned community corrections order can achieve these various ends.
Ancillary Orders
120There are some ancillary orders that I am asked to sign here and they are not opposed so I will pronounce them in a short form fashion.
121Firstly, there is a disposal order that is sought in relation to the various drugs. There is no issue taken with the making of the order under the provisions of s.78 of the Confiscations Act, I am satisfied the property referred to in the schedule was used in connection with the commission of the offence.
122I order that that property referred to in the schedule be forfeited to the State and be handled in the manner contemplated by the signed order.
123There is a forfeiture order also sought under s.34 of the Confiscations Act relating to the money and the weapons and capsule pressing machine. Again, there is no opposition to the making of the order. I am satisfied that the property referred to is suitable for forfeiture under the provisions of s.34 of the Act. I have signed that order and the property is to be handled in the manner contemplated by that order.
124That then brings me to the ultimate sentence of the court. As I intend to impose a combination type order the prison term that I will be pronouncing is only a component of the full sentence given that it exists in combination with a community corrections order, I see no useful purpose in marking out individual part sentences and then making orders for cumulation in that fashion. That would result in a term of imprisonment but the prison term is not the complete sentence at all and of course, but for the ability to combine with a community corrections order, the prison term would be a good deal lengthier. In those circumstances then, I will pass an aggregate sentence.
125I will have you remain seated. On Charges 1 and 2 on the indictment as well as on the two summary matters, you are convicted and sentenced to an aggregate term of 12 months' imprisonment. In addition, on those same four charges you are convicted and admitted to a two year community corrections order which will take effect upon your release from prison.
126It will be a treatment only order.
127Now I can only do this if you consent so you need to listen carefully as I explain the community corrections order, Mr Griffith, and I will ask your counsel in due course to speak to you to see if you will consent to this order.
128I understand though from the assessment document, these things have been explained in broad terms and you will be consenting to the order. It does not remove the need for me to explain it.
129It will be an order, as I say, that will run for a two year period. It will commence upon the completion of your term of imprisonment. Now, you have no
pre-sentence detention. I am imposing a 12 month term of imprisonment. I have announced that already.
130Whenever you are released you will need to report within two clear working days. So I cannot nominate a particular date. I cannot look at the calendar and pick a date a year from now, because of course you might even get some allowance for emergency management days. I cannot know one way or the other whether that will occur or not.
131So the order will run for two years. It commences upon your release from prison.
132Your requirement is that you must attend at the Box Hill Community Correction Services in Box Hill, the address is on the document, within two clear working days after the commencement of this order. As I say, it commences when you are released from prison. So you have got to attend at Box Hill Community Corrections Services.
133Now if that was happening today, it is not, but if it was, you would not physically attend. There is a phone number on the document, because of COVID-19 and the way that is impacting upon these orders. I have no idea what the state of play will be when you are released. The starting point I think would be to ring the number immediately upon your release, on the day of your release, to get further instructions as to when they would see you.
134So that is the first of the things you must do.
Mandatory terms
135These orders have mandatory terms, this has been explained to you but I will explain it as well.
136The mandatory terms are that you must not commit another offence for which you could be imprisoned during the time the order is in force. So it will be in force for two years when you are released and you have got to stay out of trouble, that is pretty straightforward. It has been an issue for you in 2018, it was an issue for you last year on a couple of occasions in September and also in November with those subsequent matters. So you must not commit any offence for which you could be imprisoned, and that is virtually every offence.If you are using drugs, you have got to possess drugs to use them. Possessing drugs is an offence punishable by a term of imprisonment.

137Just so you understand really what this means, it does not require a magistrate to actually pass a term of imprisonment or a court to pass a term of imprisonment for you to breach this order. If you commit an offence in the two years that you are on this order that could in theory be the subject of a term of imprisonment you will breach the order.
138So to illustrate it further, I am not suggesting you are going to do it, but if you went into a newsagent and stole a newspaper worth a couple of dollars, I do not think anyone in their right mind would ever lock someone up for that, but theft would be an offence punishable by a term of imprisonment. You would breach the order.
139Well that is the first of the mandatory terms.
140You have to turn up on time, turn up totally unaffected by alcohol or any drugs of dependence. That is what the second of the conditions relates to, complying with your obligations under the sentencing regulations.
141You have got to report to and receive visits from the community corrections officer.You have got to report, as I said, within two clear working days of the order starting.You must let them know within two clear working days of any change of address or job.You must not leave Victoria without first getting permission to do so from your community corrections officer and you must obey all their lawful instructions.
142So they are the mandatory terms, they are pretty straightforward and if you breach any of those you breach this order.
Tailored conditions
143Then there are the tailored conditions. I tailor them for your needs, but also to achieve the various purposes of sentencing as well.
144I have considered whether I should have unpaid work as a condition. There is a concern about unpaid work at the moment, in this state and generally these reports come back not recommending it because it is currently suspended. That is not the reason why I am not imposing it.
145Unpaid work is unmistakably punitive. Sending you to prison is unmistakably punitive. There is no question about that. I do not believe there is a need to have unpaid work waiting for you at the end of your prison sentence. So I am not going to impose it in the circumstances. Instead it is going to be focusing on rehabilitation and treatment.
146You are going to be under supervision of a community corrections officer for the full period of this order and you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager. You must undergo any mental health assessment and treatment as directed by the regional manager. That condition is longer but that is what it amounts to.
147Now, I do not know what they are going to give you by way of direction in terms of assessment and treatment or testing for drug abuse. I do not know what direction they are going to give you in terms of mental health assessment and treatment. What I do know is whatever they tell you to do, you do.
148You have not had a community corrections order, you are a stranger to these courts of course. There is no prior history, and the subsequent matters were dealt with in the way that they were dealt with. You have never had this sort of order. So you need to understand how to comply and how not to comply.
149The best thing I can tell you is to form a decent relationship with your corrections officer. Treat them appropriately, treat them respectfully. If there is something you cannot do under the order, if there is a direction to attend or to turn up at a particular time and it is posing some real difficulty, maybe there is a clash, maybe there is some real matter of urgency that has arisen, just ring, speak to them. It is amazing how many of these orders are breached by people who do not do that and do not do it the second time or the third time but then try and invent excuses as to why they have not turned up. If there is a good reason they will accept it as a good reason. They might ask for some evidence, but as I say treat them appropriately, communicate with them and that is your best way of complying with these orders.
150If you are using drugs you will breach this order, that is very straightforward. You will breach this order if you fall back into drug use, it is as simple as that.
151I have had probably every imaginable breach that I have observed over the years. Some people are relieved to enter these orders. You probably will not be, in the sense that no doubt you were hoping that you would be heading home today and you are not. Well, that is the position, you are not. I do not believe it is open to me to give you a standalone order. I have imposed a significant enough term of imprisonment. This order will take effect upon your release.
152The problem with that of course is that I have had you assessed here today and this order does not take effect and would not take effect until quite some time hence. I do not what your attitude will be to the order when you come to be released. I have had some people who I have placed on combination type orders who I have seen back by way of breach, because when they have come to be released they have resented the fact that they are released onto an order. Not really understanding that, but for the existence of a combination order, it would have been a much lengthier term of imprisonment.
153So it is very hard for me to know what your attitude will be to this when you ultimately come to be released. All I can do is say, comply with the order. It is not a choice. Well, I suppose it is. If you do not, you will breach it and if you breach it you will be brought back to court.
154But I have had people who have breached it by not turning up within two working days, by leaving the state, leaving an address, just not bothering to turn up for supervision. Not bothering to turn up for treatment. Do any of those things and you will breach this order.
155So they are the full suite of the mandatory terms and the tailored conditions that apply. As I say, it will run for two years.
156What I have not explained is what happens if you breach it. Well, breaching one of these orders is itself a criminal offence. It is an offence of breaching a corrections order. That is punishable by a term of imprisonment, I think it is three months, from memory.
157But that is not the major problem. The major problem is this: if you breach this order you get brought back to court. You do not get taken to the
Magistrates' Court, you do not get taken to just another judge in this building, you come back in front of me by way of breach. I do not want to see you again. I want you to serve the sentence, to be released onto this community corrections order and to not trouble the courts or the criminal justice system again. I hope that is the position for you. I hope the trajectory of your life picks up very significantly.
158But if I see you again I will have to deal with you on the breach. I cannot say exactly what I would do. Well, how could I? I would need to understand the way in which you had breached the order. I would need to make an assessment as to how you had performed and how you had breached it and I would need to make some judgements as to the extent of your compliance on the order.
159So I cannot say exactly what I would do if I see you back again. But let me just tell you this. The number of options open to a court in relation to a person brought back for a breach of one of these orders, is very limited, and the most commonly exercised power by the court is to cancel the order. If I cancel the order, then there is a resentencing task. That is, you would fall to be resentenced in relation to each one of these offences again.
160So if you put yourself in that position, if you breach this community corrections order either by not complying with the mandatory terms or not complying with the tailored terms you should work on this theory that we will meet again. You will be brought back before me by way of breach and work on the theory, the hypothesis that you are very likely to be sent to prison for a time sufficient to attract the fixing of a non-parole period. All right? But really ultimately it is a matter for you as to how you perform on the order. But as a I say, I hope I do not see you again. If I see you in breach then I will deal with you on the breach and take into account the matters raised on your behalf at that stage.
161Let me just see if there are any matters I need to deal with in terms of that explanation. Mr Dickinson, are you satisfied that your client will be giving informed consent if I ask him or not?
162MR DICKINSON: Yes, but I wouldn't mind an opportunity, Your Honour, for a quick word.
163HIS HONOUR: Go down and have a chat to him. I might actually have the order come down with you actually, so that you have got it and we will have him sign that, if you would.
164MR DICKINSON: If I might, Your Honour.
165HIS HONOUR: Yes, of course, go ahead.
166MR DICKINSON: He understands, Your Honour.
167HIS HONOUR: All right, thank you. I will ask him - - -
168MR DICKINSON: And he consents.
169HIS HONOUR: I will ask him directly. Stand up please, Mr Griffith. Do you consent to entry into this community corrections order?
170OFFENDER: Yep.
171HIS HONOUR: You understand that it takes effect upon your release from prison, you understand that?
172OFFENDER: Yep.
173HIS HONOUR: So within two days of your release from prison you are required to attend at the Box Hill Community Corrections Services and report and await further instructions from them, you understand?
174OFFENDER: Yep.
175HIS HONOUR: All right and do you confirm that you have signed this order?
176OFFENDER: Yep.
177HIS HONOUR: And you have signed it under the words, 'I understand the effect and the conditions of this order and consent to it being made'.
178OFFENDER: Yep.
179HIS HONOUR: Do you understand if you breach this order one of the real possibilities, maybe even the probability, is that you would then be sent to prison with a non-parole period being fixed.
180OFFENDER: Yep.
181HIS HONOUR: Look I will have a copy of that made then for your purposes. Have a seat then.
Section 6AAA
182I have taken into account the guilty plea in this case. If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to a term of four years three months' imprisonment. I would have fixed a non-parole period of two years eight months and that statement is to be entered into the records of the court.
Nil section 18 PSD
183There is no pre-sentence detention to declare at all as I understand it.
184Let me just see if there are any other matters. Are there any other matters from either of you at all?
185MR DICKINSON: No, Your Honour.
186HIS HONOUR: Any custody - - -
187MR PORCEDDU: Not from the prosecution, Your Honour.
188HIS HONOUR: Any custody management directions that you want me to make, Mr Dickinson or no?
189MR DICKINSON: No, Your Honour.
190HIS HONOUR: You do not want me to flag that it is his first time in custody or?
191MR DICKINSON: Yes indeed, Your Honour.
192HIS HONOUR: All right, so that’s the sort of thing I am really asking about at the moment.
193MR DICKINSON: Yes. Yes, they should be aware, first time in custody and they should of course be aware of his youth.
194HIS HONOUR: All right.
195HIS HONOUR: Well, his date of birth is on the order. So I will simply say it is his first time in custody, please take all care. As I have said, it is not a good time to be going there. There is probably never a good time to be going there, but are your instructors going to be in a position to sort of liaise with the family and to give them some advice as to how they communicate with their son and those sorts of things?
196MR DICKINSON: Yes, they do that as a matter of course, Your Honour.
197HIS HONOUR: Good, all right. I am glad to hear, all right. Beause it is not an easy time and they are making arrangements to have increased sort of video visits and the like, but they will need to know how to do that, I suppose.
198All right, nothing else then from you at this stage?
199MR DICKINSON: Only this, Your Honour, when Your Honour rises and leaves the Bench, I would appreciate a couple of minutes with Mr Griffith before he is taken down.
200HIS HONOUR: Look, I will not do that. Is there any reason why you cannot see him down in the cells? I am happy for you to have some time with him in my presence, if that is an issue then - - -
201MR DICKINSON: I understood I wasn't allowed down there, Your Honour.
202HIS HONOUR: I'm not sure.
203MR DICKINSON: No, am I wrong?
204HIS HONOUR: Are professional visits being accepted downstairs or not?
205PRISON OFFICER: Yes, but we're still not taking visitors.
206MR DICKINSON: That's all right.
207HIS HONOUR: Yes, there is not issue. So I think do it downstairs and I think it will probably be better.
208All right, well that completes the matter then, so thank you. Mr Griffith can be removed and Mr Dickinson will come down and see you downstairs, Mr Griffith. 10.30 tomorrow then, thank you.
- - -

[2020] VCC 1550

28 September 2020