Director of Public Prosecutions v Karisson
[2024] VCC 504
•19 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-01155
Indictment No. C1912592.A
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW KARISSON |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 21 March 2024 | |
DATE OF SENTENCE: | 19 April 2024 | |
CASE MAY BE CITED AS: | DPP v Karisson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 504 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Trafficking in a drug of dependence – methylamphetamine – quantity not less than a large commercial quantity – category one offence – standard sentencing regime - maximum penalty of life imprisonment – serious example of that offence - possessing drug of dependence – knowingly deal with proceeds of crime – plea after acceptance of sentence indication – late plea of guilty – adjustment disorder with mixed depressive and anxiety symptoms – declaration as a serious drug offender – automatic forfeiture of property – extensive prior history – general deterrence -
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Director of Public Prosecutions v Moutsidis & Lloyd [2020] VCC
DPP v Andrew William Karisson [2010] VSC 195
DPP v Andrew William Karisson [2010] VCC 0771
DPP v Andrew Karisson [2011] VCC 1152
Brown v The Queen,[1] and Director of Public Prosecutions v Drake [2019] VSCA 293
[1][2019] VSCA 286.
Sentence: Total effective sentence 14 years imprisonment – non parole period of 9 years and 9 months imprisonment – 1515 days presentence detention reckoned as served – 6AAA declaration – a long sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Grunwald | Office of Public Prosecutions |
| For the Offender | Ms Z. Broughton |
HER HONOUR:
Introduction
1Andrew Karisson, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence, namely methylamphetamine, in a quantity not less than a large commercial quantity, which carries a maximum penalty of life imprisonment, and, in addition, a fine of not more than 5,000 penalty units; two charges of possession of a drug of dependence, one of MDMA and one of cocaine, each of which carries a maximum penalty of 30 penalty units or one year imprisonment, or both; and one charge of knowingly deal with the proceeds of crime, which carries a maximum penalty of fifteen years’ imprisonment.
2The circumstances in which you came to commit those offences are set out in the prosecution plea opening dated 4 July 2023, which has been received into evidence in your case and marked as Exhibit A. The prosecution has also tendered and relied upon a prosecution outline of submissions on your earlier sentence indication dated 15 May 2023 (Exhibit B), a bundle of sentencing remarks from three of your earlier appearances in the Supreme Court and this court (Exhibit C), the case of Director of Public Prosecutions v Moutsidis & Lloyd [2020] VCC (Exhibit D) and red book excerpts for vehicles (Exhibit E) and valuation extracts for Rolex watches (Exhibit F).
3Your counsel has filed and relied on defence outline of submissions on sentence dated 3 July 2023 (Exhibit 1), your outline of submissions on sentence indication in this matter dated 16 May 2023 (Exhibit 2), a psychological report prepared by Pamela Matthews dated 3 October 2022 (Exhibit 3), a character reference from Faye Karisson dated 3 July 2023 (Exhibit 4), the affidavit of Faye Karisson dated 11 October 2023 (Exhibit 5), the letter of Faye Karisson dated 11 October 2023 (Exhibit 6), a letter from Pica Criminal Lawyers (Exhibit 7), a letter regarding application for hardship in respect of mortgage repayments (Exhibit 8), a letter confirming that Ms Galanos’ hardship application had been approved (Exhibit 9), Defence Outline of Further Submissions on Sentence dated 23 November 2023 (Exhibit 10), Defence Supplementary Submissions dated 15 March 2024 (Exhibit 11), and statement of claim (Exhibit 12).
4I have had careful regard to all exhibited documents as well as to the matters addressed in the numerous days of listing of the plea in mitigation of penalty.
5You will recall that on an earlier occasion in February this year, I purported to announce reasons for sentence in your case, but prior to the finalisation of sentencing order, your counsel helpfully and appropriately drew to my attention the electronic filing of documents on your behalf to which I had not had regard in those purported reasons. In such a case there are two options available to the parties - the first is for the sentencing judge to take more time, if necessary, and completely rethink the appropriate sentence afresh upon the correct facts, or in your case, many of the facts as were previously known but which have been supplemented by the additional material which may have served to cast new light upon the matters relevant to the exercise of sentencing. If the judge does not believe they can properly sentence an accused in such a case with intellectual honesty, another course is to terminate the sentencing and arrange for another judge to sentence the accused.[2] Upon hearing my indication that the matter could, legitimately, be reopened and the documents received into evidence, with further submissions made by both your counsel and the prosecution which would then allow you to be sentenced after I rethought my reasons afresh, without any concern with respect to a lack of intellectual honesty as to this task, both the prosecution and your counsel submitted I ought proceed as we have rather than the matter transferring to another judge. This is that sentence.
[2] See Adkins v The King [2023] VSCA 23, [50].
Circumstances of your offending
6At the time of your offending you were forty years of age and living at an address in Kenjulie Drive, Bentleigh East, with your then-de facto partner, Ms Carly Galanos, from whom you have now separated, and your three children. You have been unemployed for some time, apart from a short stint of part-time work.
7At 4.03 pm on 17 April 2019, a police surveillance operative observed a bald male leave your home address and approach an orange 2007 Holden utility that was parked on the street opposite the property. The flashers on the utility went on and off. The male then returned to your home address. Between 4.03 am and 5.02 am, no other people entered or exited your address.
8At about 5.02 am, police from the Special Operations Group and Caulfield DRU executed search warrants at the address. You were in the garage of the premises at the time and no other occupants of the house were present.
9A red 2014 Ferrari California T coupe was parked in the garage. The registration plate displayed did not belong to the Ferrari and was registered to a person named Daniel Simic. I have been told that Mr Simic did not register the displayed plate, that he has never owned the Ferrari and that he does not know you.
10A white 2017 Mercedes AMG C63 sedan, bearing Queensland registration plates, was parked in the driveway. The two cars are part of the property referable to your Charge 4 of knowingly dealing with the proceeds of crime.
11In the rear of the garage was an office area. In that area police found and seized a cash counter, scales, a vacuum-sealing device and mobile phones. In the main part of the garage police found and seized another cash counter, vacuum-sealing devices and plastic bags.
12Police found the key to the orange utility in the garage. A police officer unlocked the vehicle and in the passenger footwell the officer found a large green Bunnings bag which contained several large plastic bags containing a white crystal substance, to which I will return. The utility was towed to the Moorabbin police station and was retained by police.
13Police then undertook a full search of your address and seized the following:
(a) a small resealable bag containing a yellow tablet with Warner Bros logo located in the boot of the white Mercedes;
(b) an envelope containing $14,275 cash located under the floor mat in the rear driver's side of the white Mercedes;
(c) an Australian passport, bank card and driver licence all in your name, in a bag on the driver's seat of the white Mercedes;
(d) a driver’s licence in the name of Daniel Simic located in the centre console of the red Ferrari. Mr Simic lost his wallet containing that licence in mid-2018;
(e) a driver’s licence in the name of Scott McIntyre located in the driver door pocket of the white Mercedes. Mr. McIntyre’s licence is believed to have been stolen from his letterbox in 2018;
(f) eight purple tablets with lion head logo located in a green tin in the centre console of the white Mercedes;
(g) a resealable plastic bag containing a quantity of brown-crystal substance located in the sunglasses' holder of the white Mercedes;
(h) seven resealable bags each containing a quantity of white powder, located in a black box under the tool trolley in the garage;
(i) a quantity of yellow-crystal substance located in a black box under a blue trolley in the garage;
(j) a Rolex Oyster Quartz watch located in a bag on the driver's side of the white Mercedes;
(k) a quantity of white-crystal substance located in a black shopping bag in the garage;
(l) nineteen luxury-brand handbags in the walk-in wardrobe in the main bedroom; and,
(m) a key to a 2016 Revival boat.
14Upon searching the orange Holden utility on the street opposite your property, as I have mentioned, police found a large green Bunnings tote bag in the front-passenger footwell. In that bag police located large resealable bags and a plastic tub each containing a quantity of white-crystal substance, and deeper within the bag a receipt from Bunnings South Oakleigh dated 17 March 2019 at 1:12 pm for the purchase of two rolls of black shrink wrap, four rolls of clear shrink wrap and for a large green Bunnings bag, which I interpolate as being consistent with the bag itself inside which the receipt was found.
15Behind the front passenger seat police located a black backpack containing a large package wrapped in black shrink wrap which, in turn, contained a quantity of white crystal substance and three resealable bags and a plastic container, each containing a quantity of white-crystal substance.
16Your fingerprints were found on the pillar of the external driver’s side door frame of the orange Holden utility.
17I have been told that you are the sole director and shareholder of Karisson Pty Ltd and that this company owns the address where you lived at Kenjulie Drive, and an industrial warehouse at 18/536 Clayton Road, Clayton South. On 29 April 2019 police executed search warrants at this address in Clayton South using a key found in your possession when you were arrested on 17 April 2019.
18Inside the warehouse police found and seized a blue and white 2016 Revival half-cab motorboat and a Dunbier boat trailer. The key to the boat had been attached to a set of keys seized from the console of the white Mercedes on 17 April 2019. The boat and trailer were registered to a gentleman named Leon Hennessy and had been stolen from his house in April or May of 2018.
19The items seized from the Kenjulie Drive address and from the orange Holden utility, believed to contain drugs of dependence, were analysed at the Victorian Police Forensic Science Centre.
20The results of that analysis are set out in the following tables which I have copied from paragraphs 18 and 21 of the prosecution plea opening:
Kenjulie Drive address
Police
Exhibit #
FSD # Item description Quantity
(grams)Purity (%) 9 31 MDMA tablet 0.3 25 21 35 MDMA 3.1 26 22 37 MDMA 12.1 82 52 41 Methylamphetamine 1.2 Not determined 52 41 Cocaine 1.2 66 52 42 Cocaine 4.6 80 52 43 Cocaine 0.2 70 52 45 Cocaine 3.5 86 52 47 Cocaine 4.4 73 52 49 Cocaine 1.4 79 52 51 Cocaine 1.6 80 53 53 MDMA 4.2 83 55 55 Cocaine 0.5 68 58 58 MDMA 7.8 26 25 65 Methylamphetamine 0.4 85 25 67 Methylamphetamine 6.8 86 25 69 Methylamphetamine 4.1 86 Orange utility
POLICE
EXHIBIT #
FSD # ITEM DESCRIPTION QUANTITY (GRAMS) PURITY (%) 218
1
Large resealable bag containing methylamphetamine
996.6
81
219
2
Large resealable bag containing methylamphetamine
996.4
82
220
3
Large resealable bag containing methylamphetamine
493.1
82
221
5
Large resealable bag containing methylamphetamine
636.6
82
222
7
Loose methylamphetamine located in plastic tub
0.1
82
227
8
Methylamphetamine in plastic shrink wrap
1709.6
81
228
10
Resealable bag containing methylamphetamine
781.0
25
228
11
Resealable bag containing methylamphetamine
593.9
75
228
12
Resealable bag containing methylamphetamine
27.4
80
228
14
Resealable bag containing methylamphetamine
676.0
30
228
15
Resealable bag containing methylamphetamine
106.6
37
228
16
Resealable bag containing methylamphetamine
55.1
36
Total 7072.4 grams 21The total quantity of MDMA located at the Kenjulie drive address was 27.5 grams, just over half of which was approximately 25 to 26 per cent purity and 12.1 grams of which was 82 per cent purity. This is the offending referable to your Charge 2 of possession of a drug of dependence, namely MDMA.
22The total quantity of cocaine located was 17.4 grams of purity ranging between 66 and 86 per cent, which is the offending referable to your Charge 3 of possession of a drug of dependence, namely cocaine.
23The total quantity of methylamphetamine located at the Kenjulie Drive address was 12.5 grams of varying purity. The total quantity of methylamphetamine located in the orange utility was 7,072.4 grams, 781 grams of which was of 25 per cent purity, approximately 838 grams of which was of a purity between 30 and 36 per cent and the remainder of which was of a purity ranging between 75 and 82 per cent. In aggregation, this is the offending referable to your Charge 1 of trafficking in a large commercial quantity of methylamphetamine.
24The property referable to your Charge 4 of knowingly dealing with the proceeds of crime is itemised on the schedule to your Indictment supplemented by evidence estimating the value of the items. This property was the 2014 red Ferrari California coupe with a red book value between $201,550 and $244,550, the 2017 white Mercedes coupe with a red book value between $77,300 and $96,250, $24,275 in cash, 19 luxury handbags with an apparent purchase price of $68,840, a Rolex oyster quartz watch with an approximate value of $9,000, Victorian drivers’ licences in the names of Daniel Simic and Scott McIntyre and a 2016 Revival boat and trailer.
Arrest and interview
25You were arrested and interviewed by police on 17 April 2019. At the time of your arrest, you had $10,000 in cash and a set of keys to the Clayton Road, Clayton South warehouse in your pocket, and those items were seized.
26You told police that you did not own the white Mercedes but that you had been driving it for a few months and that you did not own the orange Holden utility and did not know how the keys to it came to be in your garage.
Plea of guilty and timing
27You were charged following your arrest on 17 April 2019 and were remanded into custody. Later you were granted bail with a surety of $900,000 provided by your parents with stringent conditions including a curfew and a condition that you do not leave your residential address outside curfew hours unless in the company of a parent. Unfortunately, breaches of bail ensued, and you were remanded back into custody and your parents’ surety was forfeited, which is a topic to which I must return.
28The matter proceeded through the committal stream of the Magistrates Court and you were committed to stand trial in this court in June 2021. The matter was listed to proceed to trial to commence on 24 May 2023, and in the days prior to that listing you sought an indication as to the sentence that I would be likely to impose were you to plead guilty to offences on this indictment. That indication was acceptable to you and you were arraigned and pleaded guilty to these charges on what would otherwise have been your first day of trial.
29This is a late plea of guilty, but I accept and take into account in mitigation of penalty that you entered these pleas prior to the court accommodating your trial on these charges, and as a result, you have saved the court, the witnesses and the community the time and expense of a trial on this indictment. Further, your pleas of guilty were entered at a time when the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the COVID-19 pandemic. There was a significant utilitarian benefit in you entering those pleas, which I take into account.[3]
[3]Worboyes v The Queen [2020] VSCA 169.
Personal circumstances
30You were forty years of age at the time of your offending and are now forty-five.
31You are the elder of two sons born to a mother, now seventy-four years of age, who was, and continues to be, a homemaker, and a father, now aged seventy-two, who is retired, but was a motor mechanic by trade.
32You have a younger brother who is estranged from the rest of the family. Your brother had Attention Deficit Hyperactivity Disorder and conduct problems throughout your childhood and later developed drug and mental health problems. I understand that your brother displayed acts of violence to other family members which led to you stabbing him, leading to the first of the three appearances I have cited which led to total effective sentences approaching six years in prison. I will return to this topic as well.
33You are very close to your mother and father and have many happy childhood memories. You were not exposed to conflict between your parents and there was no history of child abuse or sexual abuse.
34You attended Clarinda Primary School in Clayton where you report achievement of an average standard, with some attentional problems in the classroom. You were suspended in primary school once and, unfortunately, your brother caused trouble at primary school and he was eventually expelled.
35You went on to Moorabbin City Secondary College where you continued to have problems with attention in class and you were asked to leave school at the end of Year 11.
36You had a good group of friends at school and you tried extracurricular sports in your school years.
37You went on to TAFE and began a pre-apprenticeship program which you did not complete.
38You then worked for a chemical company, an auto-spares company in the warehouse, a tile-manufacturing company and a transport company. In 2007, unfortunately you developed diverticulitis and underwent bowel resection with 45 centimetres of your large intestine removed. You had a colostomy bag for twelve months and you have required regular colonoscopies since.
39You met your former partner, Ms Galanos, fifteen years ago and you share three children, a son and two daughters who are now fourteen, six and five.
40You commenced using cannabis at the age of sixteen years, which developed to a habit where you smoked all day. You stopped using cannabis consistently at the age of around nineteen and began using heroin, and your use escalated to using half a gram a day for six months. You undertook three months of rehabilitation at Odyssey House, which was then followed by outpatient treatment with Joseph Lamberti. When you were sentenced to imprisonment for stabbing your brother you undertook a forty-hour drug program.
41After serving this sentence, you did not return to using heroin, but as you began to socialise at night clubs, I understand that you were introduced to MDMA and amphetamine, which you mostly used at weekends. After your eldest daughter was born, you started to use amphetamine or methylamphetamine on and off, up to three grams a week, with some periods where you discontinued use. In the twelve months leading up to your arrest in 2019, you had been using daily and considered yourself addicted to these substances.
42Ms Matthews, forensic psychologist, assessed you, and she has provided me with her observations and diagnosis. She considers that in February 2021, you presented with anxious and depressed mood and affect. To her, you do not present with formal thought disorder, delusional constructs, hallucinatory or perceptual phenomena, or other indications of psychosis. You reported ruminative worries over your dietary needs, fitness, and more prominently, your wife and children.
43In June 2021, you presented to her with reactive low-level depression and anxiety associated from separation from your then partner and children while on remand. During the time on remand in 2021 you had, of course, reduced capacity to exercise as a result of pandemic restrictions and this added to the state of your mood. You were also concerned about a lack of access to medical treatment for your diverticulitis while in custody, and you told Ms Matthews that you were bleeding from the bowel daily with increased symptoms and pain.
44You reported concern about the effects of separation on your children, which stressed both you and your partner. Your behaviour has caused at least one of your children shame and trauma, and I have since been told that since this report was prepared, your son has unfortunately attracted negative attention at school and is stigmatised by your remand.
45To Ms Matthews, you met the DSM-V diagnostic criteria for an adjustment disorder with mixed depressive and anxiety symptoms at that time.
46In September 2022 you presented to Ms Matthews with a defeated demeanour and low mood. Visits from family members had become less frequent as the children were often involved in weekend activities and your then partner was otherwise at work. By this time you reported that your mood most days was depressed and you were sleeping poorly and would wake and be unable to return to sleep due to thoughts of your children. At this time you scored in the extremely high range upon empirical testing for depression in the moderate range for anxiety and in the severe range for stress. Your diagnosis was major depressive disorder as defined by the DSM-V. It was submitted on your behalf, and I accept and take into account in mitigation of penalty, that your remand conditions in prison in excess of 1,500 days, have been onerous as a result of extended lockdowns during this period in consequence of the effect of the pandemic upon remand prisoners, your inability to communicate consistently with family and the limited and selective availability of rehabilitative courses.
47Building upon Ms Matthews’ observations of your ruminations as to the effect of your conduct and its consequences upon your family, I will outline further the ways in which you have caused your family anguish and financial loss.
48The property in Kenjulie Drive, Bentleigh East, held by your company, was restrained pursuant to a Serious Drug Offence Restraining Order shortly after your arrest.
49Your parents undertook to act as surety in respect of your bail undertaking in this matter and posted a very significant amount of money to secure your conditional freedom. You breached the conditions of your bail on a number of occasions, including, I have been told on one occasion involving the action of your father in opening a door to let you out. Those breaches led to crushing financial loss to your parents.
50Your former partner, Ms Galanos, has attempted to service the loan that your proprietary limited company holds over the Kenjulie Drive property, but has experienced difficulty. She was granted a moratorium for payment of the mortgage for three months between February and May of this year. The difficulty, it was submitted, followed from your inability to contribute to the mortgage as a result of your remand, as a result of your violation of bail. Unfortunately, I have been unable to evaluate the extent to which you contributed, either through your company or personally, to the mortgage held by that company prior to you being remanded into custody from the small income you declared to the Tax Office, but I understand that the financial predicament that she faces has caused her very considerable anxiety as this has been her family home.
51Your conviction for the offending the subject of your charge 1 necessitates a declaration that you are a serious drug offender, which will presently lead to automatic forfeiture of this property, subject to applications made by your former partner and your son for exclusion from the order. Automatic forfeiture is not a matter to which I may have regard in mitigation of sentence, in my view, irrespective of the anxiety it causes others who seek to be heard and for their financial interests to be preserved.[4]
[4] Sentencing Act 1991 (Vic); s 5(2A)(f).
52I indicate here though that I will allow for mitigation of sentence on the basis of your physical condition and your mental health condition, your concerns about the suitability of treatment whilst in custody which weigh upon your mind and the psychological setbacks that you will continue to encounter in custody.
53I have no doubt that the thoughts that you frequently experience of the effect of your behaviour upon family members do weigh heavily upon you, which in turn increases the burden of imprisonment upon you, and I am prepared further to allow some mitigation of sentence on this basis.[5] But I am neither able nor prepared to isolate and segment the circumstances which contribute to your processing of these thoughts.
[5] R v Markovic & Pantelic (2010) 30 VR 589, [5], [20].
54In preparing the summary of your criminal history, I have had the benefit of reasons for sentence in three of your earlier court appearances, i.e. the reasons of His Honour Lasry J of the Supreme Court of Victoria in DPP v Andrew William Karisson [2010] VSC 195, the reasons of Judge Hicks of this court in DPP v Andrew William Karisson [2010] VCC 0771 and the reasons of Judge McInerney of this court in DPP v Andrew Karisson [2011] VCC 1152.
55You have had a history of criminal offending comprising approximately fifteen court appearances commencing with a court appearance in January 1997, where you were placed on a community-based order in the Magistrates Court for property offences. Two appearances followed in 1998 for possess cannabis and use and traffick heroin which resulted in a bond and a fine.
56In May 2000 you were found guilty of property offences, of breach of a suspended sentence order, and of driving offences, the most serious of which resulted in a suspended sentence.
57In October 2002, you were sentenced in this court on your conviction for conspiracy to cultivate cannabis, to a further suspended sentence. A further suspended sentence followed in March 2003 for driving offences, as did a further suspended sentence on further driving offences in December 2005. A weapons charge in June 2007 resulted in a conviction and fine which was followed by two court appearances for obtain property by deception and breach of intervention order in 2009, each of which resulted in a conviction and fine. You were fined in December 2009 for obtaining financial advantage by deception and possess and use amphetamine.
58In April 2010 you received your first sentence of immediate custody on your conviction for contravening intervention order charges.
59You were then jailed for four years and nine months, with a minimum period before parole eligibility upon your conviction for the charge of causing serious injury to your brother, to which I have referred, in May 2010 in the Supreme Court.
60One month later, in June 2010, you were sentenced to a total effective sentence of one year and seven months in this court upon your conviction for charges of false imprisonment, being a prohibited person possess unregistered firearm and common assault.
61In August 2011 you again appeared in this court to be sentenced by his Honour Judge McInerney on charges of traffick methylamphetamine and criminal damage. You were sentenced to 18 months on the traffick methylamphetamine charge, and this offence related to your trafficking in the drug for a period of two and a half months in 2009 and your offending involved an amount not less than 123 grams, with the modus operandi being the supply of the drug to a particular person who would then on-sell the same to the public. You met this person on at least twenty occasions for collection of drugs. Apparently, a debt of $20,000 was owed to you by this person and unpaid, and you damaged the person’s mother’s car, which led to your second charge, of criminal damage. This offending fell within your period on bail for the two 2010 convictions that I have just detailed. A total effective sentence of one year and eight months was imposed. In that case you had been the subject of police surveillance for some time prior to your arrest, as you may recall, not unlike in the circumstances of the charges before me occurring some eight years subsequent to the imposition of this sentence.
62A minor conviction for the offence of criminal damage followed in April 2018.
Objective gravity of your offending; moral culpability
63Having considered the legal submissions in this case and the evidence, carefully, I form the view that your offending in respect of Charge 1 is a serious example of that offence. You had in your possession for the purpose of trafficking an amount exceeding seven kilograms of methylamphetamine, a significant majority of which was of high purity. Drug trafficking paraphernalia was found in your garage. While your offending in respect of each charge is confined to a single date, I accept the prosecution characterisation that on that day your engagement in the business of trafficking was objectively grave, and your purpose was obviously for profit. I understand and accept your role to be an authoritative figure in a syndicate involving others arrested on the same day.
64In relation to your offending the subject of Charge 4, of knowingly deal with proceeds of crime, your possession of the two valuable cars, $24,275 in cash, the 19 luxury handbags, a Rolex Oyster Quartz watch valued at $9,000, the drivers’ licences and the 2016 Revival boat and trailer, added to a very considerable sum, disconnected as they were, from any legitimate source of income. I also consider this to be a grave example of the particular offence. This offending provides insight into what I find to be a principal motive for your offending on Charge 1 – you had an evidenced desire to live a lifestyle that far exceeded your available means of support.
Purposes of sentencing, sentencing submissions and relevant sentencing principles
65In cases of this nature the need for general deterrence is high. In other words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I must give significant emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and punish you for your offending.
66This is not your first involvement in the offence of trafficking. In 2011 you were sentenced for your role in the offence of trafficking in methylamphetamine. That conviction occurred amid long sentences imposed for other offences, which I have summarised. The risks of your behaviour were well known to you, and were manifestly clear, but you proceeded, nonetheless. In your case, your willingness to engage in this type of offending, indifferent to the risks it causes you and others, enhances the need for specific deterrence, and I am obliged to give considerable weight to this factor as well.
67Your offending will attract a period of imprisonment, as has been conceded by your learned counsel. In the time since you were remanded into custody, and since you accepted the indication I provided as to likely sentence, you have processed the full consequences of your conduct including causing your parents to lose their significant surety; causing your ex-partner, the parent of your children, a long period of parenting them alone without the social and financial assistance that you might otherwise be able to offer; causing your ex-partner and son the anxiety and uncertainty of litigating their exceptions to the automatic forfeiture of your company’s property and causing your children the shame and stigma of the social consequences of your incarceration as a trafficker of drugs.
68In spite of the damage that you have caused to them, they are loyal to you and will be there for you when you are released from custody. Your growing horror and appreciation of the effects of your conduct and your family support assists and supports you in your rehabilitation, and I am prepared to infer that your prospects of rehabilitation are at least fair, given these factors and my somewhat cautious optimism that you may mature out of your enduring temptation to offend.
69Your offence of trafficking in a large commercial quantity of methylamphetamine is a Category 1 offence under the Sentencing Act1991 (Vic). A term of imprisonment must be imposed upon you unless one of the statutory exceptions can be established, none of which are relevant to this exercise.
70The standard sentencing regime applies in your case to the offence of trafficking in a large commercial quantity and the standard sentence for this offence is 16 years’ imprisonment.
71The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. In considering the impact of standard sentencing on your case, I have considered the decisions, inter alia, of Brown v The Queen,[6] and Director of Public Prosecutions v Drake.[7] In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement, therefore, is to be treated as a legislative guidepost having the same function as the maximum penalty. It does not allow the standard sentence to be viewed as a starting point, it does not affect the established 'instinctive synthesis' approach to sentencing, nor does it require or permit 'two‑stage sentencing' and does not otherwise affect the matters which I may or must take into account in sentencing.
[6][2019] VSCA 286.
[7][2019] VSCA 293.
72Pursuant to s 5A(2)(b) of the Sentencing Act, having regard to current sentencing standards in relation to the standard sentence offence, I can only pay regard to sentences previously imposed where trafficking in a drug of dependence in a large commercial quantity was the subject of a standard sentencing scheme. I am of course familiar with those sentencing standards.
73After careful reflection I will indicate that while I agree with the prosecution contention as to the characterisation of the seriousness of this example of that offence, the sentence that I am about to impose in respect of Charge 1 is less than the standard sentence. I have had regard to the application of s 11A of the Sentencing Act relating to the calculation of a minimum period before parole eligibility. I do not share your counsel’s view as initially advanced that your circumstances justify the imposition of a minimum period falling short of the mandatory statutory minimum, however, I have endeavoured as best I can to accommodate the continuing need for your rehabilitation in imposing an appropriate minimum term.
74It was appropriately conceded by your counsel that I am confined to a sentence involving a head sentence and a minimum period before parole eligibility. I have been mindful of the totality principle of sentencing in structuring my sentence including in respect of orders for cumulation.
Sentence
75You are convicted and sentenced as follows:
· On Charge 1, of trafficking in a large commercial quantity of a drug of dependence, you are convicted and sentenced to 12 years' imprisonment. In consequence of this conviction, I make a declaration that you are a serious drug offender in respect of this charge. This is the base.
· On Charges 2 and 3, each of possessing a drug of dependence, you are convicted and sentenced to six months' imprisonment to be served concurrently with other sentences.
· On Charge 4, of knowingly deal with proceeds of crime, you are convicted and sentenced to four years and six months' imprisonment. I order that two years of this sentence be served cumulatively upon the base sentence.
76This results in a total effective sentence of 14 years’ imprisonment, and I order a minimum of nine years and nine months before parole eligibility. I declare 1515 days pre-sentence detention.
77Were it not for your pleas of guilty in this case, had the matter proceeded to jury trial but resulted in verdicts of guilty on all charges, pursuant to s 6AAA of the Sentencing Act I would have imposed a longer sentence.
78I will abstain from making the ancillary order and I will now adjourn until 10.30. But, Ms Broughton, I will allow you a moment in relation to the forfeiture order should you wish to speak to your client. Could the prosecution team kindly be excused. Anything to raise?
79No Your Honour.
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