Director of Public Prosecutions v Johnson
[2022] VCC 932
•16 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02689
Indictment No. M11268418
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRY JOHNSON |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2022 | |
DATE OF SENTENCE: | 16 June 2022 | |
CASE MAY BE CITED AS: | DPP v JOHNSON | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 932 | |
REASONS FOR SENTENCE
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Catchwords: Possess drug (ecstasy) - traffick drug (simpliciter, methylamphetamine) - Summary offences: deal property suspected of being proceeds of crime, fraudulent use, unregistered motor vehicle, no P plates, use vehicle displaying representation of number plate - 31 years old - Lengthy enough criminal history - Early plea - Worboyes v The Queen [2021] VSCA 169 - Very good performance on CISP bail - COVID-19.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Mohammed | Office of Public Prosecutions |
| For the Accused | Ms M. Greener | Michael J Gleeson & Associates. |
HIS HONOUR:
1 Terry James Johnson, you have pleaded guilty to the possession of ecstasy, to trafficking in methylamphetamine and five summary offences, namely, dealing in property suspected of being the proceeds of crime, fraudulent use of a registration plate, use of an unregistered motor vehicle, failing to display P-plates and use of a vehicle displaying a representation of a numberplate.
2 You are 31 years of age. You were born in January 1991 and you have a long enough criminal history which is of some relevance to the task.
3 The summary prosecution opening on the plea correctly sets out the maximum penalties. I do not intend to repeat them.
Facts
4 That summary is dated 1 June 2022 and has been marked as Exhibit A on the plea. Your counsel Ms Greener told me that it was an agreed statement. I see no need then to set out the full sentencing facts. I will sentence pursuant to that agreed summary.
5 Stated very briefly then, in June of last year, two motorbikes parked on the footpath in the Central Business District attracted the attention of an eagle‑eyed police member, Sergeant Wilson, who was working solo in the city. The plates looked home-made to him and he photographed them and went to his car to make the relevant enquiries. That member then observed you approach one of the motorbikes. You were with another man named Robinson. The police member approached you. Robinson was cooperative. You were nervous and edgy and made a number of attempts to drift away from the scene. His suspicions were aroused and he then searched you.
6 You were seen to remove a sunglasses case from your jacket and place it on the window ledge behind you. You tried to disguise that attempt and then to shield the view of the glasses case with your body and the reason for that was obvious once it was searched. It contained a significant enough quantity of what turned out to be methylamphetamine. Also a capsule containing ecstasy and a number of clear snap lock bags. You were arrested.
7 The police found $690 in cash, hence the summary suspected property offence. At a search back at the police station, another snap lock bag was found in your underpants. That contained 1.9 grams of ice. All up then there was 114.6 grams of ice by way of mixed weight and .3 of a gram of ecstasy. Exhibit B is the certificate of analysis which sets out the purity of the drug and quantities, both pure and mixed.
8 You were interviewed but predominantly remained mute. The Road Safety Act (and regulations) offences speak for themselves and I will scarcely mention them again. They are the least of your problems.
9 You spent 59 days in custody before being bailed on 17 August. Of course I have returned you to custody now.
10 So much then for my brief summary of the offending. That is all it is. I will sentence pursuant to the more detailed agreed written statement which is marked, as I say, as Exhibit A on the plea.
In mitigation
11 Your counsel relied upon some written plea submissions dated 8 June 2022. She filed a final CISP report and a number of valuable references and letters, including a letter from you. I asked her to take me to some detail of your background as the written materials did not go into much detail at all. It had virtually no information about your family background or your education or your employment. I really knew next to nothing about you.
12 Your counsel, for whatever reason, was not adequately prepared and knew very little about you. That was not at all satisfactory and, of course, you heard me say as much. Really she should not let that state of affairs happen again, but let us get beyond that as I have. I stood the matter down to permit her to obtain those important details. I mention that only to reassure you that by the end of the plea, I am confident that your counsel had marshalled what she needed to marshal on your behalf.
13 The fact that there had been the very late filing of the written materials, which I commented on, or this issue in the running, has no role at all to play in my ultimate sentence. None. Neither of those things had anything at all to do with you or in any way reflected badly on you. I am sure you will understand that I just wanted to have a better sense of who it was I was sentencing. That does not strike me as that unreasonable. In fact I need that information. The fact is though, that ultimately I was taken to your family background as well as your educational and your employment history.
14 Ms Greener went into some of the detail of your past criminal history, including the successful completion of a drug treatment order, and two recent successes on community correction orders. She also made submissions about your substance abuse history and your prospects of rehabilitation. She put before me your instructions as to the nature of the trafficking and what you expected to receive and she made submissions about the relative objective gravity of the offences to which you have pleaded guilty, as well as the relevant sentencing purposes in this case.
15 So despite that faltering start, she ultimately conducted a very thorough plea on your behalf, make no mistake about it, and, in fact, the written submissions, though they were late filed, were of a very high quality and assisted me and hence you actually. She relied upon the following matters in mitigation:
· Your early guilty plea in the midst of the global pandemic;
· The presence of some remorse; and
· The impacts of COVID-19 upon your brief custodial experience as well as those impacts that might arise if returned to prison.
16 She argued that it would be open to release you on a community correction order without any return to prison and she referred me to the well‑known case of Boulton v The Queen.[1]
Prosecution
[1]Boulton & Ors v The Queen [2014] VSCA 342
17 The prosecutor, Ms Zammitt, had prepared detailed written submissions as to sentence which were marked as Exhibit C on the plea. There were a handful of cases attached to a chart, though none were said to be on all fours. There was a departure from the call that existed in that written sentencing submission document for a head sentence and a non-parole period. Some recent material filed on your behalf led to an alteration in that stance.
18 The prosecution accepted that it would be open to impose a combination sentence given that the court had at its disposal an additional 12 months' imprisonment. They accepted that you have done well on bail, but argued that supervision would be important, whether by way of a parole period or a combination sentence type release. They made submissions as to the gravity of the offending and the principles in play, arguing that this was serious offending given the quantity of methylamphetamine.
19 I will discuss these various submissions shortly, but I need to make it clear that I am not bound by any submissions as to sentence from either counsel. I do not ignore any submissions made to me, but what I have got to do is to exercise my own sentencing discretion in this case.
Background
20 I will turn firstly to your background and I am going to do that briefly as I have no reason not to accept what I have been told as to your background and I see no point in just rehashing it. You were born in Australia, as I say, in January 1991. So you are now 31 years of age. It follows you were 30 years of age at the time of the offending, so you really do not have youth as providing any excuse or explanation for this offending.
21 You grew up initially in Geelong. You have a number of siblings, half and full. Your parents separated when you were about seven and it was a pretty unpleasant home life by all accounts with movements between your parents and not too much by way of stability. I was told that your father was a violent alcoholic. You had run away though from your mother to live with your father as home life with your mother was also beset with significant issues. So fragmented schooling and early drug use was your lot.
22 You left school in Year 9 and you had been struggling academically. You have worked in a range of jobs, generally unskilled or labouring or factory work. You had a serious motorbike accident in 2020 which set you back very significantly. You have an eight-year-old son and I was told that you have re-established a positive relationship with him despite the geographic challenges that existed.
23 You have a relatively lengthy criminal history. You know that. You have not taken your chances at every stage. I see no point in setting out all those past matters. There are some serious enough matters within your criminal history, including being a prohibited person either using or for that matter possessing a firearm. You received a two-year term with a non-parole period of 12 months at the Dandenong Magistrates' Court back on 28 April 2015 for reckless conduct endangering life, being a prohibited person using a firearm, possession of GHB and offending whilst on bail. I have not been told much about that offending but if it related to the discharge of a weapon. It must have been serious enough offending.
24 I note the submission that you succeeded on the 2012 drug treatment order and the two CCOs imposed more recently. Also that you complied with that earlier parole period when you were released on parole. These are positives, of course they are, but it is not a positive that you have relapsed or reoffended. The positive aspect of compliance on past court orders then has to be seen in the setting of a relapse into drug use and in the commission of this serious offending.
25 I was also told of two sets of offences which are listed for a guilty plea in July of this year with that driving offending occurring in March of 2021 and May of 2020.
26 The criminal history is of obvious relevance to my task, but it is not a matter of any aggravation. I must pass proportionate sentences here and you do not fall to be sentenced a second time for any of that past offending. You received those sentences and you served them. Those matters have some relevance to my task because I have to make judgments about your risk of re‑offence and your rehabilitative prospects. I have to make judgments about the need to deter you from future offending as well as the need to protect the community from you.
Guilty Plea
27 I turn then to consider the other matters raised on your behalf. The first of those matters is your guilty plea. You have pleaded guilty at what I will treat as the earliest opportunity. As a result of taking this early responsibility, the time, cost and the effort of a committal in the lower court, or a trial up in this court, has been avoided. Witnesses have not been required to give evidence at a committal or at trial. They have been entirely spared that experience. You were also cooperative, to a degree, with the police.
28 You have facilitated the course of justice in these various ways and you must be rewarded. Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes.[2] In the course of the global pandemic there has arisen a large backlog of cases. Your case was never one of them. It was very swiftly settled. I take these various matters into account in mitigation.
Remorse
[2]Worboyes v The Queen [2021] VSCA 169
29 You pleaded guilty at the earliest stage and a guilty plea is often, though not always, indicative of some remorse. There is also your letter and the observations of some of the other authors, including the author of the CISP final report. I am prepared to find that there is some remorse on offer in this case. I take the existence of remorse into account in your favour as well.
Rehabilitation
30 I turn then to your prospects of rehabilitation. It is hard not to be a bit guarded. You have a lengthy enough history before the courts. You have been sent to prison before and that has not deterred you. Courts have tried to foster your rehabilitation with community correction orders and that drug treatment order and that has not been particularly successful either, in the sense that you are back now before the courts having resumed drug use. I accept that you performed very well on the drug treatment order and complied with those community correction orders, but here you are again this time before the courts with the most serious offence you have ever committed.
31 You are not some silly teenager committing some impulsive offence. You are a mature man taking very much a serious but calculated risk. Hopefully the time you have already served in custody, in combination with the time served on pretty strict bail conditions, as well the sentence I will soon impose, will all have some role in deterring you into the future. The fact is you have had long term issues with drugs of dependence. That casts a real cloud over your future prospects.
32 The materials before me as to your efforts on CISP bail are plainly very positive. I am not going to set them all out. The CISP report itself demonstrates your excellent efforts over 17 weeks in a range of areas. Then there are the many references and letters, including the work reference. Three people attended court to support you and they support you yet again here online, including others actually. Your employer Mr Leftley was one of them and wants you to do an adult apprenticeship. His is a very strong reference.
33 The other written references are important as well and some also indicated the attempts that you were taking to address substance abuse issues before the offending actually arose. Your own letter speaks of your descent into drugs, with your life losing focus and perhaps spiralling out of control after the motorbike accident in May of 2020 with the sequel of the multiple surgeries that you have discussed. Your future prospects will, to a large degree, be conditional upon abstaining from drug use.
34 That has been a significant issue over many years, with relapses not that uncommon, but I accept that you are wanting to change and that is a very decent first step actually. Then there are all the other steps that you have taken and the gains that you have made whilst on the CISP bail and in your life since being on bail which fortify my view. I believe that you can actually change the trajectory of your life. That this is actually quite realistic. I hope you are successful.
35 Of course, there is always a level of anxiety in a judge sending back to prison a person who is exhibiting positive signs as you have, but the seriousness of your crime simply leaves me with no choice. Do not think that you have wasted your time on that CISP bail. You have not. Had you done badly on bail, well, it would not have assisted you at all and counsel really could not have made any particularly powerful submissions as to your future prospects. Being released on bail and doing as well as you have was never operating as some guarantee that the matter would have a happy ending. However, as you have done as well as you have, it permits a greater capacity for optimism as to what the future holds for you.
36 It has still assisted your position even though you are back in custody and that is because it gives me a better sense of your desire, and for that matter, your capacity, to rehabilitate. The various materials, including your own letter, persuades me that you do have really quite realistic prospects of rehabilitation. Quite aside from this mitigatory impact arising on the plea, surely that time on the CISP bail is time well spent for you, showing you the possibilities that exist in your life ahead. Well they will still exist upon your ultimate release from prison.
COVID-19
37 I turn to the issue of COVID-19 and its impact upon you. I do accept that as a general proposition the COVID-19 virus and the response to it by those running the prisons has increased the burden upon prisoners. Prison has undoubtedly been a more stressful environment, but you were only in that environment for a brief enough time before being bailed. No doubt there would have been some worries about catching the virus in such a setting. Unlike someone out in the community there really is no level of autonomy. No doubt you would have experienced the increased burden of quarantine or lockdown in that brief period.
38 There undoubtedly would have been some limitations to visiting and courses in that brief period in which you have been held last year. It was certainly not a good time to be locked up. Things have looked up since you were last in prison. Personal visits resumed from about March of this year as I understand it. You are back in prison, of course, following my remand of you at the end of the plea the other day and no doubt you have been back in quarantine. It is an unpleasant experience.
39 What lies ahead in the future is really impossible for me to determine. I cannot speculate about that. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence I am about to impose. I cannot know if that will take place or not. I certainly do not proceed on the assumption that it will. To take it into account would be to contemplate future executive action, which is prohibited.
40 The prisons have tended to lag a bit behind the community in terms of restrictions being lifted. They also tend to bring them back in more rapidly from my observation. Case numbers are still quite high out in the community and it really is not that unreasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming months. There are still some lockdowns and the day-to-day uncertainty that they cause as to how prisoners will fare.
41 Today, for instance, I have learnt of the existence of an outbreak out at Marngoneet, with some 60 positive cases, and as many isolating as close contacts. So there is still a fair bit of uncertainty in a prison setting and that is not easy and I take that into account. I take into account the increased burden imposed by the response to COVID-19 in the manner that I have described.
General
42 Let me turn then to some general matters. I am required to take into account a large range of matters, including the maximum penalties and the nature and the gravity as well as the impact of any crimes committed. I turn then to the offences. I will scarcely mention the Road Safety Act or related offences or for that matter the possession of ecstasy. That is because the trafficking is the most serious of the offences before me by a mile. It is no minor example of trafficking in a drug dependence.
43 Your counsel pointed to the absence of sophistication and planning. Well, plainly there was some planning. As to how you came by the drug and how you intended to sell it, and for what price and profit, I am none the wiser. I am dealing with you for trafficking on a single date. That is very often the position. As I said on the plea, often enough a warrant is executed and a house is searched or a car or a person is searched and drugs are found. I am dealing with you for trafficking founded on possession for sale on that day.
44 Often enough the 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 buyers or other forms of electronic surveillance, but this was obviously planned offending. The drugs did not just land in your lap. I am dealing with you for what is described as a non-commercial quantity trafficking. It is, as we lawyers describe it, a simpliciter charge with a lower penalty provision.
45 It should not be forgotten, but often enough it seems to be forgotten, that this offence has a 15-year maximum penalty.
46 This is a quantitative based regime. It follows that the quantity will always be a relatively important matter, but by no means the only or even the most important factor. It is plainly serious conduct to traffick in drugs at this level.
47 Your counsel put what were some untested instructions from you as to why you had the drugs. I was told that you had them all on credit and were going to sell at $200 per gram, and would be obliged to return $100 per gram to that unknown supplier and you would get $50 and an amount of drug to use yourself for each gram sold.
48 You made a no comment interview or remained mute in the interview and, in fact, in the interview denied saying off tape to the police member that you had been selling and were an addict (see Questions 51 to 54). This was a reference to the off-tape conversation set out at p42 of the depositions where you were suggesting to the police member off tape that you did not deal it, but you smoked it and had what you had for personal use which would last you for ages and that you sell a little to keep on top.
49 Well, I do not for one moment accept that suggestion, and nor is your counsel even relying upon that off-tape exchange. Nor do I accept on the balance of probabilities the account you have given to your counsel as to how you came by the drug and what you hoped to achieve financially. I was not required to, but I made it plain as a matter of fairness that I was not prepared to act on unsupported and untested instructions such as those on offer in this case.
50 On the material before me there was nothing to suggest that you had any limited or minimal role or were in this for any reason other than a sizeable enough profit. You had a sizeable enough quantity of the drug that is for sure. You had the money. You had the bags. Your counsel was essentially arguing that you were doing this to fund your own habit. She was suggesting that this was street level trafficking. I placed your counsel on notice of my provisional doubts on each score. She has chosen not to call you on the plea.
51 Now, you had $690 in cash. You gave a ridiculous account of that cash being from Centrelink and a withdrawal from an ATM, but there were also the banking records which showed the movement of a large enough quantity of cash in the preceding month. Now, I am not impermissibly expanding the trafficking charge to encompass earlier dates. As I say, it is a single date offence and relates to possession for future sale. I am not dealing with you for any earlier act of trafficking. I make that very clear.
52 The fact is though that the existence of the cash on the day of arrest and the banking transaction records, disclose the fact of those funds either being in your possession or passing through your bank account. That tends to debunk the suggestion as to financial need and the motivation for trafficking being to fund your own habit (see the Court of Appeal decision of Ververis[3]).
[3]The Queen v Ververis & Ververis [2010] VSCA 7
53 I reject the submission made as to this trafficking arising out of any personal need to fund your own use of drugs. Your use of drugs might have had a role to play, but you were not acting out of the need 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 ice which you possessed on the day. I cannot quantify what you expected to receive by way of profit. I am prepared to find that you might have used some of the drug yourself, but that that was not the real motivation here.
54 You were taking a calculated risk as traffickers always are and there is no reduction in your culpability as might for instance arise for a youthful offender or an intellectually disabled one or even one under some large financial pressures. Nothing in the CISP report was being relied upon in this way. There was mention in that report of a diagnosis of schizophrenia and perhaps an acquired brain injury, but there was no material in support of those matters and they were not being relied upon in this case.
55 You were committing what you must have known was an unmistakably serious crime. You knew you were placing your liberty in jeopardy. Of that I have no doubt at all. No doubt you were doing so as a result of the lure of what seemed at the time to be easy enough money. Trafficking in drugs almost always involves an offender taking a calculated risk. The taking of that risk is motivated by the desire for financial reward of some description. It is a serious crime to traffick in drugs at any level. I am satisfied beyond reasonable doubt that you were engaged in this enterprise for profit.
56 The possession of ecstasy charge is, of course, far less serious given the very small quantity. There is a much lower maximum penalty as you have discharged what is described as your Pantorno[4] burden. That is to say, I am satisfied to the required degree that the possession of that drug was not in any way connected to trafficking, hence that lower penalty provision applies for the possession of that drug.
Puprposes
[4]Pantorno v The Queen [1989] HCA 18; 166 CLR 466
57 I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. If rehabilitation was the only purpose of sentencing, sentencing would be very simple indeed. No one would ever be locked up. But it is not that simple. There are quite realistic prospects of rehabilitation here, but rehabilitation must surrender some ground to the other purposes of sentencing and that is owing to the seriousness of the trafficking charge.
58 I am required to punish you for your crimes. I must do that justly and proportionately. That is an important purpose.
59 I must also denounce your conduct and that is also an important purpose of sentencing.
60 I 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 is plainly important here. So too is community protection.
61 General deterrence is very clearly an important purpose of sentencing in this case. This court must send a clear message to others in the community who may think it is worth considering trafficking in drugs. Enough people are prepared to take the risk as you were.
62 Drug trafficking is pernicious. It attacks the very fabric of our society (see the case of Zarghami[5]). You were trafficking in methylamphetamine and trafficking in that drug is prevalent (see the case of Haddara[6]). The courts must convey the message loud and clear through the sentences imposed that trafficking when brought before the court will actually be dealt with seriously. Many people succumb to temptation. They succumb to the lure of what appears to be easy money, as no doubt you did.
[5]Zarghami v R [2020] VSCA 74
[6]Haddara v The Queen [2016] VSCA 168; 260 A Crim R 306
63 Well, the courts have a role in sending a message that will hopefully cause like-minded potential offenders to rethink their involvement in this serious sort of crime. The sentences must cause other like-minded people to pause and to reflect and to consider the potential ramifications of being caught if they choose to commit this serious style of offence. That is to say, there must be sentences of sufficient severity to offset the lure of large and relatively easy profits which can be derived from trafficking in drugs (see the case of David v DPP).
64 You plainly made the choice to commit this crime of trafficking. Of course you know it was a very poor choice, but you knew exactly what you were doing. As I have said, the other offending is obviously far less serious.
65 I must have regard to the maximum penalties. I also must pay regard to current sentencing practices. That is not a single controlling factor. As to the trafficking, I have looked at the relevant Sentencing Advisory Council snapshot no. 267 of April 2022, as well as the updated online sentencing statistics. I have looked at overviews of cases from the Judicial College of Victoria Sentencing Manual. That Snapshot that I have mentioned discloses that the most common range of sentences where prison was selected fell in the range of two years to less than three years.
66 I have looked at the selection of cases provided by the prosecution and having read them, I note that they are simply not on all fours. No one suggested they were. They do not greatly assist me. There are differences aplenty. At the end of the day, I am exercising a sentencing discretion in 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 are not precedents and they do not drive my task. Nor for that matter is there such a thing as one correct sentence.
67 Statistics have inherent limitations. I am not here to pass sentence based on what has been the most common sentence imposed in the past. As I have said, I am exercising a sentence discretion in your case. The statistics omit all of the detail of the matters in aggravation and in mitigation which would actually go to explain a particular outcome.
68 As I have said though, quantity is almost always an important consideration. It is here. Often enough it is the only point of distinction between different examples of trafficking. You had 114 grams of ice by mixed weight. The commercial quantity for methylamphetamine is 50 grams pure. You significantly exceeded that quantity on pure weight. You had about 94 grams pure, but, of course, I must not lose sight of the fact that I am dealing with you for non-commercial quantity trafficking.
69 You may well not have had any sense as to the purity of the drug, but the other measure of commercial quantity is by mixed weight and that is fixed at a threshold of only 250 grams for the drug methylamphetamine. Traffickable quantity is 3 grams mixed. Plainly then this was not some small quantity of the drug by any stretch of the imagination. You were way over the trafficable quantity and by mixed weight you were not that far below half the commercial quantity threshold. This was serious offending and you well knew it.
Totality
70 I take into account the principle of totality. I have a variety of offences of varying levels of seriousness. At the top of the tree obviously is the trafficking. The second rung of seriousness is the suspected proceeds offence and the rest of the offences are just pale into insignificance.
71 I have engaged in a last look at the effect of the sentences to satisfy myself that the overall effect is commensurate with your overall criminality. Indeed I am going to run the prison sentences concurrently in this case.
72 Prison is always a disposition of last resort. Ms Greener argued for a community correction order. She argued that the various purposes of sentencing could be achieved by such an order. That such a disposition could achieve all the purposes of sentencing in this case. She argued strongly that you should not be returned to prison, that to do so would impact upon your ongoing rehabilitation. That it would also in a way be counterproductive for the community.
73 If I thought that a standalone community correction order, or even one in combination with your existing pre-sentence detention, would achieve the various purposes of sentencing, then I would proceed in such a manner. That is just a reflection of the fact that prison is, as a matter of law, always a matter of last resort. As a judge, I can only confine a person if the lesser alternative not involving confinement would not achieve the various purposes of sentencing. Secondly, if I must imprison you, and I must here, it can be for no greater time than is required to achieve the purposes of sentence.
74 Your counsel referred me off to the case of Boulton and to a variety of statements from that decision. Well, I am well familiar with that case having been referred to it in so many of the pleas conducted before me since that decision was published many years ago. That case does not, and never did, suggest that every offender for every crime must or should receive a community correction order, either on its own, or in combination. There are some crimes that are just too serious for a standalone community correction order or even a community correction order imposed in combination with a term of imprisonment.
75 I do not believe that a suitably conditioned community correction order is open to me here. I do not believe that such a disposition, that is a community correction order, even one in combination with a term of imprisonment, would pay adequate weight to the various sentencing purposes that I mentioned a short time ago. General deterrence is a very significant purpose of sentencing here. The need to send the message. Well, the message sent to other potential offenders would be entirely the wrong one in my view.
Ancillary Orders
76 There are two ancillary orders that are applied for here. There is no issue taken with them. I will briefly pronounce them and my electronic signature will be attached to these orders. Firstly, there is a disposal order sought under the provisions of s78 of the Confiscations Act relating to the various drugs. Of course there is no issue about that order being made. I am satisfied the preconditions for the order are made out and pursuant to s78 of the Confiscations Act I forfeit to the State the property referred to in the schedule and direct that it be handled and managed in the way contemplated by the signed order.
77 Secondly, there is a forfeiture order sought under the provisions of s33 of the Confiscations Act relating to the cash that was seized. Again there is no opposition to that order. I am satisfied that that property is appropriate to be forfeited to the relevant Minister and I likewise pronounce that order in an abbreviated fashion.
Sentence
78 I am sorry to have taken so long to get to this point. Let me now pass sentence upon you.
79 On the first of the charges, which is the possession of the drug of dependence, ecstasy, I do not believe that a prison term is warranted in relation to that matter. I convict and fine you the sum of $300.
80 On Charge 2, that is the trafficking charge, I convict and sentence you to two and a half years' imprisonment. That is the base sentence.
81 On the summary offence of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to two months' imprisonment.
82 On the balance of those summary offences there is obviously something of a unity there relating as they do to the use of a motor vehicle. I believe an aggregate penalty is both open and appropriate. In fact, many of those offences are not even punishable by prison terms. I do not believe that a prison term is even warranted for any of the offences which do provide for imprisonment so I will convict and fine you the aggregate sum of $1,500 on those four charges. Summary offence Charge 9 has already been marked as withdrawn.
Base
83 The base sentence then is that two-and-a-half-year term that I have imposed on the trafficking charge. I am not ordering any cumulation.
Total Effective Sentence
84 The sentence imposed on the summary property suspected of being the proceeds of crime offence will be served concurrently upon that base sentence. That being so, then the total effective sentence is two-and-a-half-years or 30 months.
Non-Parole Period
85 Given the dimensions of that sentence, I must fix a non-parole period. I can make no assumptions as to whether you will be released on parole. In fact, again, I am prohibited from speculating about that sort of issue. It will be entirely in the hands of the Adult Parole Board. I will make available my reasons to them. They may assist you.
86 I fix a period of 16 months during which you will not be eligible for release on parole.
Pre-Sentence Detention
87 You have served a total of 66 days by way of pre-sentence detention and that s18 declaration is entered into the records of the court. You get credit for that time obviously.
6AAA
88 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury I would have sent you to prison for four and a half years. I would have fixed a non-parole period of three years in that setting and that declaration made pursuant to s6AAA of the Sentencing Act is also to be entered into the records of the court.
89 I'm going to see if there are any other matters. Mr Mohammed, any matters from your perspective?
90 MR MOHAMMED: No other matters, Your Honour. Thank you.
91 HIS HONOUR: Ms Greener, any matters from your perspective?
92 MS GREENER: No, Your Honour. Thank you.
93 HIS HONOUR: All right. Well, look, that completes the matter. Let me just see, how long have we got the link for, Ms Todisco?
94 ASSOCIATE: Till 1.30 today.
95 HIS HONOUR: All right. So Ms Greener would have access to it. You can put her off into a room if she wants with Mr Johnson, can you?
96 ASSOCIATE: That's right, Your Honour.
97 MS GREENER: Thank you, Your Honour.
98 HIS HONOUR: Ms Greener, it's up to you. I mean, you'll need to explain the ins and outs of the sentence and your client's rights in relation to it obviously. I'm not sure whether you want to organise your own conference or use our link or both for that matter. What would you like to do?
99 MS GREENER: Your Honour, if I could have a brief chat with Mr Johnson and then I'll see how he'd like to - he may want some time to think about it.
100 HIS HONOUR: Of course. Look, you don't need to be that brief. You can take as much time as you like because you'll be in control of the meeting. It will end once you leave it and - but it will be - I'm just not sure who's online. It will be just you and your client. So it will be confidential in that sense, but - and once you've done what you need to do you can then leave it and that will be the end of it.
101 Well, look, that completes the matter then. So, Mr Johnson, obviously you'll stay put where you are. Ms Greener will have a chat to you confidentially and explain to you the ins and outs of this sentence and your rights in relation to it and, of course, once I've revised the reasons I'll provide them to the parties. So that completes the matter then. Adjourn the court to 2 pm tomorrow.
102 MS GREENER: As Your Honour pleases.
103 MR MOHAMMED: As the court pleases. Thank you, Your Honour.
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