Director of Public Prosecutions v Hodges
[2025] VCC 1060
•21 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-24-00316
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK HODGES |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2025; 9 July 2025 | |
DATE OF SENTENCE: | 21 July 2025 | |
CASE MAY BE CITED AS: | DPP v Hodges | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1060 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: traffick drug of dependence commercial quantity – traffick in a drug of dependence – knowingly deal with proceeds of crime –s5(2)(h)(e) - category 2 offence
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited:Gregory (a pseudonym) v R (2017) 268 A Crim R 1; R v Verdins [2007] VSCA 102; Farmer v The Queen [2020] VSCA 140; Lombardo v The Queen [2022] VSCA 204; R v Osenkowski (1982) 30 SASR 212; DPP v Rinaldi [2016] VCC 1301; DPP v Duffy [2021] VCC 1741; Power v the Queen [2010] VSC 139.
Sentence:Total effective sentence of 2 years and 8 months imprisonment, with a non-parole period of 1 year and 1 month.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Tamburro | Office of Public Prosecutions |
| For the Accused | Ms Z. Alhalabi | Beck Legal |
HER HONOUR:
1Jack Hodges, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, four charges of trafficking in a drug of dependence and one charge of knowingly dealing with proceeds of crime. All the offences are single date and charged on 14 July 2023.
Circumstances of the offending
2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
3You were born in December 1996 and were 26 years of age at the time of the offending.
3/1 Brown Street
4On 14 July 2023 at approximately 8:45AM police attended at an address at Brown Street in Swan Hill to execute two search warrants. There was no one present at the address and police were unable to gain entry.
5At approximately 9:00AM you attended the address in a black Holden Commodore and parked on the street out the front of the residence. Police notified you of the search warrants and you cooperated and were then arrested.
6On your phone, police observed photographs and videos of various drugs and large sums of cash. There were messages on ‘Signal’ and ‘Facebook Messenger’ that appeared to involve either the purchase or sale of various drugs.
7In the course of executing the warrants, police located a number of drug paraphernalia, drugs, money and other items, as outlined in the opening and what I am referring to here is obviously a summary of the opening that has been exhibited.
8You were informed of additional search warrants to be executed at another address where you were known to reside, that is, your father’s address in Mellor Grove in Swan Hill. You cooperated, told police there were more drugs there and gave them keys that you said would open the cabinet and the safe.
Mellor Grove
9At 11:30AM that day police attended the Mellor Grove address to execute another search warrant. There was no one present at the address and the door was unlocked.
10Police conducted a search of the residence and located a variety of items, including several ziplock bags containing powder, pills, and mushrooms, drug paraphernalia and cash, as outlined. Police also located a safe in the shed at the rear of the property, inside of which was located further cash, items, and ziplock bags containing a variety of powder, pills and liquids.
11Police searched your blue Holden Commodore parked on the front lawn, inside of which was located a key for secure storage off-site.
Further investigation
12Following your arrest, you were conveyed to Swan Hill Police Station where you participated in a record of interview. You predominantly gave no comment answers but gave some answers, as outlined in the prosecution opening at paragraph [13].
13The total quantum of cash seized from the two properties was $21,590. (Charge 6 – Knowingly Deal with Proceeds of Crime)
14Analysis of your mobile phone revealed various images of drugs of dependence with text stating the product’s name and price, and text message conversations about the sale and purchase of drugs.
15Analysis of the various drugs returned the following results:
Description
Total Net Qty (g)
Purity (%)
3,4-methylenedioxy-N-methylamphetamine
(MDMA)
676.0
N/A
Cannabis
1,003.7
N/A
Cocaine
51.1
N/A
Methylamphetamine
107.3
< 50
Psilocin and/or Psilocybin
N/A
N/A
16You were arrested on 14 July 2023 and granted bail on 3 October 2023. You therefore have a total of 83 days in pre-sentence detention.
Gravity of offending
17Your offending is objectively serious, as reflected by the maximum penalty of 25 years imprisonment, on charge 1. This charge is also a Category 2 offence.
18The prosecution submit that your offending is serious and rely in particular upon the following factors –
19The quantum of drugs:
(a) On charge 1, the MDMA is 1.352x the commercial quantity threshold of 500g.
(b) On charge 2 the cannabis is 4.015x the traffickable quantity of 250 grams.
(c) On charge 3, the cocaine is 17.03x the traffickable quantity of 3 grams.
(d) On charge 4, the methylamphetamine is 35.76x the traffickable quantity of 3 grams.
(e) On charge 5, 117.1g of psilocybin. The thresholds for psilocybin are only measured in pure amounts, which are not in evidence in the current matter.
20More generally, the prosecution refer to the following indicia of the trafficking operation:
(a) Five different substances in ‘not insignificant quantities’ were spread out across multiple different packages across two locations.
(b) At your home police found small amounts of drugs in your bedroom, laundry and back room, as well as ziplock bags, scales, a testing agent and a box containing 165 vapes.
(c) The bulk of substances were found at your father’s property, in a filing cabinet in your room and a safe in the rear shed. In your room police also found ziplock bags, scales, and items for hydroponic growth of cannabis.
(d) You voluntarily provided your phone to police, which demonstrated actual purchase and sale of drugs.
(e) Police also found knuckle dusters in your bedroom and a butterfly knife in the safe at your father’s home.
21The prosecution submit that profit is also a relevant consideration and that the trafficking operation is here contextualised by the total quantity of $21,690 cash across both properties, the subject of charge 6. The greatest collection of cash was $17,180 found in the safe at your father’s property. I note here that I have taken this into account, in the manner advanced by the prosecution, and am mindful not to double punish you for this offence.
22The prosecution also submit that it is notable that you were not working in the 8 months leading up to your arrest and were not in receipt of government payments.
23The prosecution submit that, while it is unclear where you fall in any criminal hierarchy, your role and culpability can be properly informed by the nature and number of substances, in combination with the cash and online messages evidencing sale.
24The prosecution also refer to the seizure of a butterfly knife and knuckle dusters as relevant, particularly to community protection, though acknowledging the weapons are not as serious, as is seen in some other cases. While these items may be relevant as circumstantial material to establish the purpose for which the drugs were possessed, I note first of all that you have not been charged for possession of these items. Further, in all the circumstances and in the absence of any other evidence, I do not find, to the requisite standard, that they aggravate your offending.
25On your behalf your Counsel acknowledges the seriousness of the offending. In terms of the quantity, she submits that the extent to which it exceeded the threshold is modest in comparative terms and the offending does not approach the more aggravated or large-scale end of commercial trafficking. She submits you were acting alone and not as part of any broader, organised criminal enterprise, engaged in ‘higher levels of planning, resourcing and community harm.’ She further submits that offending carried out by a single actor, may be less indicative of entrenched criminality or upper-level supply.
26In Brian Gregory (a pseudonym) v. R[1] the Court of Appeal set out the manner in which trafficking charges should be approached by a sentencing judge. The Court stated:
‘ … the sentencing regime for trafficking offences is quantity-based. That is, the legislature has fixed the maximum penalties by reference to specified quantitative thresholds — commercial quantity (‘CQ’) and large commercial quantity (‘LCQ’) — with the applicable quantities for each drug of dependence specified separately … quantity is a highly relevant consideration in sentencing for trafficking offences … Other things being equal, the greater the quantity trafficked the more serious the offence. There are, of course, other important indicators of offence seriousness — in particular, the offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement.’
[1] Gregory (a pseudonym) v R (2017) 268 A Crim R 1.
27The Court outlined a non-exhaustive range of features that might inform the exercise of the sentencing discretion for a charge of trafficking in not less than a commercial quantity. Importantly, central aggravating features of the offending in Gregory were violence and intimidation, features absent from your offending. As the Court of Appeal stated in Lytras v The Queen[2], ‘presumably it is those central features, coupled with the very substantial size of the illegal operation, which would have justified a sentence of ‘double figures’ (at [62]) I accept that the scale of the offending in your case, is far removed from the circumstances and very large and sophisticated offending in Gregory.
[2] [2020] VSCA 150.
28I have taken into account the cases referred to by Counsel. While offering assistance of course, each case turns on its own facts and circumstances.
29The prosecution submit that the cases of Rinaldi and Duffy involved offending less serious then yours[3].
[3] The uplift factor is one that I take into account but it is neither a determinative nor controlling factor in the sentencing calculus (Condo [2019] VSCA 181; Gayed v The Queen [2021] VSCA 141); DPP v Rinaldi [2016] VCC 1301; DPP v Duffy [2021] VCC 1741.
30Briefly in DPP vRinaldi [2016] VCC 1301 police located the offender asleep in his car and conducted a search of it seizing a range of drugs, including 660.9grams of MDMA (charge 4 – trafficking CQ) and 36.9g of amphetamine (charge 2 – trafficking). The accused faced a total of four charges of trafficking simpliciter, one charge of trafficking in a drug of dependence in a commercial quantity, one charge of possession of a document for the purpose of trafficking and related summary offences. While the offending in this case is broadly similar to yours, there are some important differences in the case. The accused in Rinaldi had a significant prior criminal history including previous convictions for trafficking, along with past opportunities on rehabilitative orders.
31In DPP v Duffy VCC 1741 the accused pleaded guilty to one charge of trafficking in a commercial quantity of MDMA, two charges of possession of a drug of dependence and one charge of possessing a firearm. These charges arose from the execution of a search warrant at a hotel on 17 April 2019. The quantity of MDMA was 620.6grams. In that case, there was no suggestion that the offending on the charge was part of an ongoing business of trafficking. There was no evidence of remorse in the case and his prospects for rehabilitation were assessed as unfavourable. The accused was 55 years of age and admitted an extensive prior criminal history, attracting a range of dispositions including fines, supervisory orders and terms of imprisonment.
32In Power v the Queen[4] the appellant was sentenced on charges of possess a general category unregistered handgun, possession of a drug of dependence and trafficking in a drug of dependence, namely MDMA, in not less than a commercial quantity. Each offence occurred on the one day, arising from an execution of a search warrant at the premises where the applicant lived. He was sentenced to 45 months on the trafficking commercial quantity charge. The applicant was 32 years of age with no prior history. The Court of Appeal found that the 3 year and 9 month term imposed on the commercial quantity charge was within range but reduced the non-parole period. The quantity of MDMA in the case was 719.8 grams but the prosecution note that it was decided before the Court of Appeal decision in Gregory.
[4] [2010] VSC 139.
33While comparable sentences may play a part in informing the instinctive synthesis, as stated in DPP v Zhuang [2015] VSCA 96
‘Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished. Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features.’
34In all the circumstances I assess your offending as serious, though I accept your counsel’s submission that it does ‘not fall at the most aggravated end of the commercial spectrum.’ The commercial quantity was well exceeded and while there is no clear hierarchy in which your role can be assessed, I have taken into account the indicia referred to by the prosecution which suggest your active involvement in the sale of drugs. As the prosecution highlight, there were multiple drugs, in substantial quantities, stored across two properties.
35Importantly however, while your offending is unlikely to have been isolated, you are to be sentenced for trafficking on these charges based on your possession on the one day only. The confinement of the offending to one day and the absence of common aggravating features, such as operational violence, also inform my assessment of your offending as not falling towards the upper range.
36You also face four trafficking charges, for which the maximum penalty is 15 years imprisonment. While these charges do not relate to commercial quantities, the amounts discovered were still considerable. I have assessed the seriousness of each charge separately[5]. The sentence imposed must reflect the separate criminality involved in the offending along with the principal of totality, given all the offending relates to the one day.
[5] See Mitchell v R [2016] VSCA 321.
37I accept that your drug use at the time may have contributed to the offending, that you likely have a substance abuse disorder[6] and that you were also partly funding your own use. However, given the quantities and variety of drugs located and the amount of cash recovered, I infer that you were also trafficking for financial gain, which is relevant to an assessment of your moral culpability.
[6] See DATC reports.
38For offending of this nature, and in particular for the offence of trafficking in a commercial quantity of a drug of dependence, general deterrence, just punishment, denunciation and community protection assume considerable significance.
Plea of guilty
39Your matter resolved prior to committal and it is accepted that you entered a plea at the earliest opportunity.
40There is utilitarian benefit to the early resolution of your case without calling evidence or proceeding to trial. Your plea also indicates an acceptance of responsibility.
41Your Counsel also relies on your ‘high level of cooperation’ which is reflective of an early acceptance of responsibility and a degree of genuine remorse for the offending. You told Mr Cummins ‘well I was living a drug using lifestyle .. I admitted I was drug dealing … now I realise how stupid all of this was. Spending time on remand was a big wake up call for me and now I’m determined to kick goals without drugs and alcohol being part of my life.’
42The prosecution submit that you present with a lack of insight and contrition and therefore the value of your plea should be limited to its utilitarian benefit. Also, they submit that the law differentiates between regret for one’s current circumstances on the one hand, and genuine penitence on the other.
43In all the circumstances, I accept that your early plea of guilty, cooperation and representations to others demonstrate genuine remorse. At the outset, you were very cooperative with the police, which I will return to. You have also expressed remorse for your offending to others including your father who describes you as ‘extremely regretful of [your] actions.’
Personal circumstances
44Your personal circumstances were comprehensively canvassed by your Counsel and are outlined in the report of clinical and forensic psychologist Mr Jeffrey Cummins. You are now 28 years of age and you were 26 years old at the time of the offending. You were born and raised in Echuca. You have two siblings.
45Your parents separated when you were approximately 10 years of age. Your mother abruptly left the family home in Swan Hill. You report witnessing arguments between your parents before your mother left but were never subjected to inappropriate discipline. You described your parent’s separation to Mr Cummins as ‘traumatic’ and destabilising and you believe it contributed to your anxiety problems. Your father retained primary care of you and you had difficulty adjusting to only seeing your mother during fortnightly weekend contact visits.
46You lived with your father until you were 21 years of age. Your father is now in his 60s and works as a senior fisheries officer in Swan Hill. You describe your relationship with him as supportive and close and he has in particular encouraged your amateur boxing pursuits and supported you through your legal issues.
47Currently you reside with your mother and brother in Melbourne. Your mother is now in her early 60s and works as a sales representative. You described to Mr Cummins that your mother apparently struggles with her own mental health issues which you in turn struggle to understand.
48One of your brothers lives in Bundoora and works as a baker and the other, who is aged 16, lives with you and your mother. He is diagnosed with an autism spectrum disorder. You describe enjoying a close relationship with your younger brother. Your older brother has provided a letter in support of you where he also details some of your challenges growing up. He also refers to your active role in helping your younger brother maintain his health and growing independence (letter of Tom Hodges).
49In terms of your schooling, you managed to complete year 12 but your education was disrupted and challenging. In September 2004, when you were in grade 2, you were referred to Dr John McLennan for an assessment due to concerns around your school progress. You were displaying egocentric behaviour and aggression towards your peers. Your behaviour was disruptive and you lacked empathy towards other children. About a year later, in September 2005, at the age of 8, you were diagnosed with Asperger’s Syndrome by Ms Julie Gillin, an Autistic Disorders Assessment Service Coordinator. In addition, you also had a documented registration with Bendigo hospital on 8 October 2004 which noted a diagnosis of Asperger’s Syndrome.
50Throughout your schooling you had a teacher’s aide due to learning difficulties, including problems with reading, writing, attention and concentration. You were frequently bullied and retaliated by bullying others. You were isolated from other students and had a different lunchtime schedule, during which you saw school counsellors. Overall, you instruct that you tried to manage your learning difficulties independently but that your mother put you through programs to try and ‘cure’ it, including the DORE program. Mr Cummins notes that you exhibit symptoms indicative of mild autism spectrum disorder, such as rigid thinking, obsessive-compulsive tendencies and social discomfort.
51Mr Cummins concludes that your earlier challenges, learning difficulties, social struggles and the impact of your Asperger’s diagnosis, likely contributed to your anxiety problems, which began around the time of your mother’s abrupt departure from the family home. He also suggests that your social discomfort and anxiety may have influenced your later life choices, including your preference from working from home and avoiding social interactions.
52In terms of employment you have had some employment in a bottle shop, KFC and as a forklift driver. You tried pursuing your own online business, which was ultimately closed as it was not profitable and you are now looking for work. You have a history of amateur boxing, with regular training and scheduled fights. You told Mr Cummins that you got into boxing to help rebuild your confidence and reduce your level of anxiety.
53Turning to your history of drug and alcohol use, Mr Cummins questioned you in some detail about your prior use and noted that there were some inconsistencies between the information you had provided. In summary, you started experimenting with alcohol and cannabis from the age of 12 or13. From around 16 to17 you occasionally abused your brothers dexamphetamine and Ritalin. You also started using MDMA at about 17 and then ice and after you largely stopped using ice you moved on to cocaine. Around the time of your offending you describe yourself living a ‘drug-using lifestyle’, using drugs ‘virtually all the time.’ You developed intermittent dependency on alcohol, regularly binge drinking. You were using a variety of drugs including MDMA, cocaine, methamphetamine, ketamine, mushrooms and speed. You describe weekly drug binges lasting from Thursday night to Sunday afternoon.
54You have ceased drug use since your arrest and have only occasionally consumed alcohol since being released on bail. On bail you were first supported by the Court Integrated Service Program (CISP) and underwent comprehensive Alcohol and Other Drug (AOD) assessment through Anglicare Alcohol and Drug Service and participated in at least eight alcohol and drug counselling sessions.
55You have been in a relationship with your partner, Ms Crichton, aged 22, for the last 5 years. She currently lives with your father in Swan Hill as it best accommodates her work. She has been very supportive of you throughout your legal matter. She has never been in trouble with the law and has no documented mental health history. At the time of your arrest you had been living with your partner at the rented address at Brown Street where you had lived for approximately a year and a half.
56You have no prior criminal history.
57Your history of mental health conditions has already been canvassed.
58Mr Cummins diagnoses you with (at [51]):
(a) Generalised Anxiety Disorder, which he believes stems from your mother’s abrupt departure from the family home; and
(b) PTSD, triggered by your time in custody and the realisation of jeopardising your life through drug use and criminal activities.
59In terms of self-reported symptoms, you scored in the extremely severe range for depression, anxiety and stress. You reported suicidal ideation without forming a plan.
60As already noted, you regard yourself as having Autism Spectrum Disorder. Mr Cummins opines:
‘…If he does have ASD, then in my opinion he would be regarded as being a high functioning person who has symptoms of a mild ASD. He has never been medicated or trialled on ASD relevant medication. I confirm that on the basis of my assessment I did not immediately regard him as meeting sufficient criteria to be diagnosed with ASD’ (at [59]).
61Instead, Mr Cummins diagnosed you with Generalised Anxiety Disorder and as having PTSD (at [59] [60]).
62You told Mr Cummins that your time on remand was a very negative experience and that you had engaged in some suicidal ideation, which you continue to occasionally do though you have never formed a plan to take your life.
63Mr Cummins opines that incarceration would ‘most probably, and quite possibly inevitably’ lead to a deterioration in your mental health and commitment to rehabilitation (at [66]). You expressed to him significant anxiety about the prospect of returning to custody, which Mr Cummins links to your diagnosis of Generalised Anxiety Disorder and PTSD, both of which were exacerbated by your previous remand.
64In terms of your background, your Counsel relies upon your troubled history, and in particular the two significant events in your childhood – that is your parent’s separation and your diagnosis of Aspergers. Quite properly she did not submit that Bugmy principles were engaged[7]. She emphasised your unusual circumstances growing up by reason of your diagnosis – your vulnerabilities, isolation from others and being the subject, from a young age, of regular analysis, assessment and observation. She submits this is ‘far from what a normal child would go through’ and that it has been, as supported by the report of Mr Cummins, impactful.
[7] Bugmy v The Queen [2013] HCA 37.
65The prosecution do not accept that your youth was ‘traumatic’ and submit that the highest the evidence rises is that your mental health was ‘disturbed’. With reference to an earlier DATC case management report, the prosecution submit that in respect of your parent’s divorce you had previously identified ‘miss[ing] a few parties’ as the only fallout.
66The prosecution also submit that your mental health symptoms as set out in the psychological report of Mr Cummins were in ‘fairly stark contrast’ to the DATC pre-sentence reports. You described prison as no worse than ‘no good’, denied any current or historical suicidal ideation and rated your mood as ‘8 out of 10 … stable and supported.’
67In terms of the previous Drug Court reports, I accept the prosecution submission that the reports are not necessarily inadmissible in these proceedings. Clearly, it was also information that Mr Cummins had available to him. However, the reports are provided for a particular purpose and within a particular context. They are to assess a person’s suitability to participate in a DATO. In all the circumstances, I am not prepared to find that any purported differences in your account renders unreliable what you told Mr Cummins in respect of your background or your experience in custody. Broadly consistent with what you told Mr Cummins, at one point in your assessment with the case manager you commented that your period on remand ‘wasn’t nice.’ Also, as Mr Cummins notes in his report, in his experience people who are chronic substance users can experience some memory difficulties (at [33]).
68I accept and take into account that as a result of your PTSD and Generalised Anxiety Disorder any term of imprisonment is likely to weigh more heavily on you then it would on a person in ‘normal health’[8].
[8] R v Verdins [2007] VSCA 102.
Other mitigating factors
69In my assessment of your case, I also take into account the delay in the finalisation of your case. It is now over 2 years since the date of your offending. You have been in a state of uncertainty since then, uncertain and despairing as to whether you will be returned to prison, and you have demonstrated and effected your own rehabilitation in that period.
70For this period, you have also been on bail with relatively stringent conditions, reporting to the police each Tuesday and Friday and abide by a curfew.
71I take into account the delay as an important consideration, and as enlivening both the fairness and rehabilitation limbs.
Prospects of rehabilitation
72In terms of your rehabilitation, the prosecution submit that your prospects of rehabilitation are unclear. They accept that your lack of criminal history, early plea of guilty, and co-operation with police at the time of search go positively towards an assessment of prospects. They submit however that those matters must be ‘weighed against the current allegations and the absence of any clear reasons for offending.’ Your Counsel submits that your prospects are very favourable, as demonstrated over the last 2 years.
73In my assessment of your rehabilitative prospects I have taken into account a range of considerations, including Mr Cummins assessment of you. He considers that you are strongly committed to your rehabilitation and have severed ties with your former drug-using acquaintances.
74He considers that returning you to custody would inevitably expose you to other drug users, which could undermine your progress. He suggests that you would probably benefit from receiving ongoing mental health treatment with a specific focus on your symptoms of a Generalised Anxiety Disorder and PTSD (at [64]).
75I take into account the active steps over a substantial period of time that you have taken to progress your rehabilitation. While your period on remand, I accept, was difficult for you, you were involved in garden maintenance work and participated in courses and completed most of the Atlas modules. As already noted, after your period on remand you were then on CISP bail and engaged in drug and alcohol counselling. You engaged well in treatment and successfully completed your episode of brief intervention. Since that time you have also been subject to relatively stringent bail conditions, which you have complied with. I also accept that you have remained abstinent from drugs since your release from custody (see test result) and have made significant changes to your lifestyle.
76You are currently in receipt of a jobseeker payment and prior to that, some months ago, you secured work as a labourer through Upswing Recruitment agency. You then injured your back at the end of 2024 and had to take time off work, consequently losing your job. For about six months you tried to earn an income through selling men’s streetwear online, but as already noted, this business was not sustainable. In terms of employment, while there is nothing concrete at the moment you are being pro-active and trying to ‘upskill’ yourself.
77I take into the protective factors in your favour, including the good networks and ongoing support you have from your family, friends and your partner. In their testimonials they collectively speak of you as someone who is hardworking and supportive of others.
78I also take into account the seriousness of the offending, your early plea of guilty, cooperation and remorse and importantly, your lack of prior criminal history. I accept that your time in custody was a ‘significant wakeup call’ and that you have, as you emphasised to Mr Cummins, now ‘learnt your lesson’ (at [63]). Your father also speaks of observing the ‘dramatic impact’ on you of being imprisoned. He states that over the last 2 years he has seen you ‘mature and understand the consequences’ of your actions and demonstrate a ‘huge commitment to change.’
79In all the circumstances I consider that you present with very positive prospects of rehabilitation.
Statutory Regime
80As already noted, on charge one a Court must impose a custodial order unless an exception applies pursuant to s.5(2H)(e) of the Sentencing Act 1991.
81Relying on this section, your Counsel submits that there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3.
82The prosecution does not accept that any of the reasons relied upon, alone or in combination, amount to circumstances that discharge this ‘almost impossible’ burden[9] . The prosecution submit that the nature and the gravity of the offending calls for an immediate term of imprisonment to be imposed.
[9] Buckley v The Queen [2022] VSCA 138.
83In determining whether there are substantial and compelling circumstances under subsection (2H)(e) the relevant legislative provisions provide as follows; the court
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to-
(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
84In addition, subsection (2I) provides that in determining whether there are substantial and compelling circumstances the court must have regard to:
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
85The Court of Appeal has also offered considerable guidance in the application of this provision. In Farmer v The Queen the court described s5(2H)(e) as a very high hurdle that will not often be surmounted[10]. The legislative norm is that Category 2 offences will attract an immediate term of imprisonment. As stated,
‘In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s5(2)(H) will be harsh. In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the view point of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree, paragraph (2H)(e.) guards against the risk of injustice, but the stringency of the test cannot be avoided’ (at [52]).
[10] Farmer v The Queen [2020] VSCA 140.
86In Lombardo v The Queen the court stated that it is apparent that the enquiry under (2H)(e) has two key steps[11]. First, the court must identify whether there are substantial and compelling circumstances, that is circumstances that are weighty and forceful and powerful, so as to justify not imposing a custodial sentence.
[11] Lombardo v The Queen [2022] VSCA 204.
87The second critical step, if the circumstances are substantial and compelling, asks whether they are also exceptional and rare. This is to be regarded as a composite phrase, 'It is a threshold which must be met before it is open to impose a non-custodial sentence'. Properly understood it refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence.
88Applying the two steps to the mandated analysis calls for the sentencing judge to make an evaluative judgment. It is possible that a set of circumstances may engage the exception in combination even when the constituent circumstances are mainly, or even wholly, relevantly common[12] .
[12] See also DPP v Kenneison [2023] VSCA 321 [37]-[41]; Fariah v The Queen [2021] VSCA 213.
89Within the bounds of reasonableness whether an applicant’s circumstances meet the threshold requirement of s.5(2H)(e) is ultimately for the sentencing judge to determine and evaluate. ‘Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception …’[13].
[13] Fariah v The Queen [2021] VSCA 213.
90In summary, your counsel submits that the cumulative effect of the following matters amounts to substantial and compelling circumstances that are exceptional and rare:
(a) No prior criminal history;
(b) Significant assistance provided to police during the search warrant;
(c) Relevant personal circumstances, including a diagnosis of autism spectrum disorder (formerly Asperger’s Syndrome) from early childhood;
(d) Demonstrated abstinence from illicit drug use since arrest and rehabilitation in the community;
(e) No further offending since release on bail; and
(f) A genuine display of remorse.
91Your Counsel canvasses the legislative framework and accepts that when determining whether substantial and compelling circumstances exist the Court must give greater weight to general deterrence and denunciation then to the other sentencing purposes set out in s5(1). However, she submits, this does not mean the Court must disregard those other purposes altogether. In particular, rehabilitation remains a relevant and important sentencing purpose, as recognised in section 5(1)(c.) which provides that one of the purposes of sentencing is ‘to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated.’ Rehabilitation continues to be a factor that can properly inform the Court’s evaluative judgment.
92Addressing these factors in turn, I accept and take into account that you have no prior criminal history. Your Counsel submits this is the first time you have faced criminal proceedings, which is a significant factor in the Court’s assessment of whether the case falls outside the usual or expected circumstances for serious drug offending. Further, she submits, you have demonstrated sustained pro-social behaviour in the period since your arrest. You were granted bail on 4 October 2023 and have remained completely offence free since this time, a period approaching two years. This conduct supports the conclusion that the offending was an isolated and out of character event and that you are capable of living a law abiding life in the community.
93The prosecution submit that in large drug cases where the ordinary principle is that lack of criminal history is given less weight in the overall sentencing exercise, it follows that this factor would be given less weight in assessing the exception.
94Next, your Counsel submits that one of the significant aspects of the offending is the level of voluntary assistance you have provided to police during their investigation. She submits, ‘without this assistance, the police may not have located the commercial quantity of MDMA which underpins the mandatory sentencing regime now in issue.’
95You made admissions and actively facilitated the search process. You opened the front door, permitted police entry and immediately acknowledge ‘there was stuff in the back room which belonged to him.’ You handed over your mobile phone and provided your passcode and showed police how to enter the relevant pattern. This act of cooperation, your Counsel submits, enabled the police to retrieve text message evidence of your dealing with drugs.
96When informed of a second warrant to search your father’s residence you again volunteered information. You told police there were more drugs and money and you told them where. You handed over your car keys, advising they contained the keys to both the cabinet and safe. Your Counsel submits that this ‘level of unsolicited assistance’ is both ‘unusual and significant’, ‘not often seen in trafficking matters.’ It is possible, she submits, that but for your assistance, the commercial quantity of drugs may not have been located.
97The prosecution submit that there is no cause to speculate that the MDMA would not have been found if you had not told police about the safe in which it was located. The Court has no basis to make this finding. The police had a warrant to search both addresses, including your father’s, and they told you this. You then advised them of the drugs inside of the safe.
98As I have already referred to, I accept and take into account your significant cooperation which assisted the police in their investigation. However, as discussed with your Counsel at the plea hearing, in the circumstances, I am unable to find, or proceed on the basis, that but for your assistance the commercial quantity of drugs may not have been located and you may not have been charged. As already stated, I also accept that you have demonstrated remorse for your offending and I do take this into account.
99Turning to your personal circumstances and background, this has largely already been canvassed.
100Your Counsel accepts that they are to be given less weight in this analysis but contends that they are still significant. She relies on your relatively young age, your history of struggles and your mental health diagnosis. The prosecution submit that your age does not weigh heavily in your favour, noting that you are now 28 years. While there is no clear delineation of when an offender will no longer be considered young or youthful, the authorities tend, the prosecution submit, to treat 25 year olds as the ‘upper end of youthfulness.’
101The prosecution further submit that your personal, familial, educational and vocational history is ‘positive and otherwise unremarkable’ and does not warrant a finding of substantial and compelling circumstances. In any event, the Court is directed to give personal circumstances less weight in assessing the exception.
102I take into account your relatively young age. You are not a youthful offender however I accept that there is no strict ‘cut off’ to when the well-known principles have application. I accept that at the age of 26 at the time of offending and 28 now, you are at the ‘upper end’ and the principles, while not irrelevant, have less relevance and application.
103I accept that your earlier diagnosis of autism caused you hardship growing up and has likely impacted you, in the way outlined by your Counsel. You told Mr Cummins ‘I think of myself as suffering from an Autism Spectrum Disorder and being around people increases my level of anxiety’ (at [18]). I also accept that while not sufficient to enliven Bugmy considerations, at a young age you did suffer a disruption in the separation of your parents and have continued to feel unattached to your mother. I take these matters into account, along with the finding I have already made as to prison being served more onerously because of your mental health.
104As for your abstinence from illicit drugs and rehabilitation and no further offending, your Counsel submits that this is an important factor, given also how it bears upon specific and general deterrence and the need for community protection.
105The prosecution accept that your abstinence from illicit drugs is a matter that the Court can properly take into account in considering the exception. However, the prosecution submits it is not so exceptional and rare that it would satisfy the exception either alone or in combination with other factors.
106I take this factor into account as an important one.
Assessment
107I am required to make an evaluative judgment, unaffected by notions of burden of proof.
108I consider that your circumstances are substantial and compelling. While not a youthful offender, you are still relatively young. You have no criminal history. You took immediate responsibility for your offending and offered significant cooperation. You are well on the path to rehabilitation, as demonstrated over the last 2 years. These proceedings have been heavily weighing on you. You have strong family support and you have generalised anxiety disorder and PTSD which I accept will make prison more onerous. Many of these factors bear on specific deterrence and the need to protect the community, which remain relevant sentencing considerations. The strength of these considerations is influenced by the nature and gravity of your offending and I have considered these matters within the legislative framework outlined.
109As already canvassed, the ‘exceptional and rare’ requirements refer to circumstances that are wholly outside the ordinary factors typical of the relevant offence, in this case commercial quantity trafficking. The subjective evaluation required in this context may well be informed by the sentencing judges experience and observation of the many cases which come before it at first instance, but the Court should be cautious not ‘simply to substitute is own assessment of what is exceptional and rare’ (at [87]).
110After close and careful evaluation, I do not consider that your accumulated circumstances, as relied upon, are ‘exceptional and rare,’ compelling the conclusion that the mandatory detention provision should not be applied.
111Each case needs to be decided on its own facts, and the Court is not required to compare or distinguish other cases to arrive at the appropriate finding or sentence. However, your Counsel helpfully referred to relevant authorities which I have considered. In brief summary I note that in Farmer’s case, where the applicant was 18 years of age at the time of offending, what made the case ‘most unusual’ was the physical disfigurement from which the applicant suffered and its profound impact it had on him during his life. It significantly reduced his culpability for the offending and made him extremely vulnerable in custody. In the case of Fariah, the Court found that the circumstances of the applicant, who was 21 at the time of offending, were sufficient to engage s.5(2H)(e) of the Act. His circumstances including his appalling childhood experiences in a war torn country, coupled with his youth, his plea during the pandemic and the risk of deportation and other factors relied upon, were sufficient in combination to engage s 5(2H)(e).
112I have considered all of the factors relied upon in your particular case and cumulatively, as stated, they do not compel me to find the existence of substantial and compelling circumstances that are exceptional and rare.
113Your Counsel submits that if the court is not satisfied that substantial and compelling reasons are made out, then an alternative sentencing disposition of a short term of imprisonment on charge 1 is sought, with the remaining charges being dealt with by way of a Community Corrections Order[14] . It would be appropriate to impose a CCO on the remaining charge taking into account the sentencing discount afforded to a plea of guilty, your lack of previous criminal history, your good character evidenced by the tendered character references, your very good prospects of rehabilitation demonstrated by your progress in the community while on bail.
[14] Wright v The King [2023] VSCA 243.
114For completeness after the plea hearing, I had you assessed for a community corrections order and you were assessed as suitable.
115In all the circumstances, I do not consider that the punitive and denunciatory aspects of sentencing could adequately be met by structuring a sentence as proposed by your Counsel.
Sentencing purposes
116The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.
117I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case.
118Against the body of compelling material in your case remains the gravity of the offending and the importance, in particular, of general deterrence in sentencing for these crimes. You trafficked in substantial quantities of drugs and generally crimes of commercial trafficking in a drug of dependence are punished by imposition of substantial terms of imprisonment. General deterrence and denunciation are particularly important. Given your lack of criminal history and your favourable prospects of rehabilitation I moderate the weight to be given to specific deterrence and community protection.
119. I have considered the general sentencing landscape for the offences, in particular for commercial quantity trafficking, along with the relevant statistics, though noting their inherent limitations.
120In sentencing you I have also taken into account the principles of proportionality, parsimony and, as already discussed, given the overlapping nature of the offending, totality. I give all the factors relied upon on your behalf, including your early plea of guilty, full weight.
121I have arrived at the conclusion that the only just and appropriate sentence in your case is one that is a term of imprisonment, structured with a non-parole period.
122You have no prior criminal history. This will represent your first custodial sentence and your previous experience in custody of 83 days I accept was a difficult one, triggering PTSD. Returning you to custody after a substantial period in the community, of positive change and stability, I accept will be challenging and disruptive for you.
123In my view in your case there is a place for a degree of mercy here. While your rehabilitation is not the only factor to be considered, returning you to custody for a substantial period of time will risk losing what you have gained. Ultimately, the community's best interests are served in you continuing on the path you are now on. In Osenkowski King CJ stated:
‘… there must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view … that leniency at that particular stage of the offender’s life might lead to reform.’[15]
[15] R v Osenkowski (1982) 30 SASR 212.
124The sentence I will impose accords due weight to the gravity of your offending and the relevant sentencing principles. It will also be moderated to reflect the significant mitigating factors in your case and promote your rehabilitation which is also of greater benefit to the community[16].
[16] See also DPP v Richardson [2023] VSCA 241.
Sentence
125All right, Mr Hodges, if you could stand, please. Synthesising all relevant factors, you are convicted and sentenced as follows.
126On Charge 1, which is the charge of commercial quantity trafficking, you are convicted and sentenced to a term of two years and two months' imprisonment.
127Charge 2, trafficking in cannabis, you are convicted and sentenced to a term of six months' imprisonment.
128Charge 3, trafficking in cocaine, you are convicted and sentenced to a term of 11 months' imprisonment.
129Charge 4, trafficking in methylamphetamine, you are convicted and sentenced to a term of 14 months' imprisonment.
130Charge 5, trafficking in Psilocybin, you are convicted and sentenced to a term of five months' imprisonment.
131Charge 6, you are convicted and sentenced to six months' imprisonment. That is the proceeds of crime charge.
132Now the orders for cumulation are as follows. Charge 1 is the base sentence. Charge 2, I cumulate one month. Charge 3, two months. Charge 4, three months. Now counsel, that ought to arrive at a total effective term of two years and eight months' imprisonment. I am just going to pause there so that you can both check those figures please.
133MS ALHALABI: Yes, Your Honour.
134HER HONOUR: Mr Hodges, in your case, I propose to fix a very low non-parole period. Taking into account all factors as canvassed, including the gravity of the offending, the need to reflect general deterrence, I consider the term that I am about to fix is the minimum that justice requires you serve. The term I have also set reflects what I regard to be significant and compelling factors in mitigation. It will allow for a longer than usual period of parole supervision, to give you the opportunity to continue and advance your rehabilitation in the community when you are released which, as I have already stated, I consider also advances the community interest. The term that I will fix as the non-parole period is 13 months' imprisonment.
135Pursuant to s18, I declare that you have served 81 days in pre-sentence detention.
136Pursuant to s6AAA, it is a complex indication can I indicate, because of the interwoven nature of these matters, but I can indicate that you have certainly benefited from your plea of guilty at the earliest opportunity, and but for your plea, I would have sentenced you to some four years and two months' imprisonment with a non-parole period of some two years and five months.
137The disposal order was unopposed?
138MS ALHALABI: That's correct, Your Honour.
139HER HONOUR: It was just the disposal order?
140MS CHAPMAN: No, Your Honour, there was a forfeiture order as well.
141HER HONOUR: Forfeiture order as well. Both unopposed?
142MS CHAPMAN: Both. Yes, I understand that's the case, yes.
143
HER HONOUR: I make the disposal and forfeiture orders in the terms sought, unopposed and I will have noted as custody management issues that
Mr Hodges suffers from post-traumatic stress disorder, generalised anxiety disorder, has little experience in the custodial setting and has also experienced, or certainly reported, past suicidal ideation. I will have all those matters noted.
144
Mr Hodges, I have sentenced you to a total effective term, as you should understand, of two years and eight months' imprisonment. I am setting a
non-parole period, as I have indicated, a low non-parole period of 13 months. Take away the 81 days that you have served and what would be hoped - I have no power or decision-making in relation to parole, that is a matter for the Parole Board, but it is hoped that, and what I have sought to achieve in this sentence, is to reflect the importance of the punitive and denunciatory components and objectives of sentencing, but also it is hoped that you will be able to continue the path that you have well and truly started to commit yourself to your rehabilitation. Okay, you can take a seat. Yes?
145MS ALHALABI: Your Honour, it's just one matter. In terms of the pre-sentence detention, it should be 83 days.
146HER HONOUR: I beg your pardon. Eighty-three, is that agreed?
147MS CHAPMAN: Yes, it's agreed, Your Honour.
148HER HONOUR: All right. Eighty-three days in pre-sentence detention declared. Now, Ms Alhalabi, would you like a moment up here if the officers can accommodate it?
149MS ALHALABI: Yes, please, if they can.
150
HER HONOUR: Okay. Thank you. Officers, can you accommodate
Mr Hodges just remaining for a moment in court so that his counsel might speak to him? I note that his family's in court too. Obviously, he will remain where he is, but can you accommodate a moment please?
151PRISON OFFICER: Certainly, Your Honour.
152MS ALHALABI: As the court pleases.
153HER HONOUR: Okay, counsel, thank you very much for your assistance.
154MS CHAPMAN: As the court pleases.
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