Director of Public Prosecutions v Khodher
[2024] VCC 829
•7 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01057
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AIDEN ANIS KHODHER |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2024 | |
DATE OF SENTENCE: | 7 June 2024 | |
CASE MAY BE CITED AS: | DPP v Khodher | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 829 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Possess Substance for Trafficking Drug of Dependence – Cellulose sodium – Relevant Criminal History – Co-offender – Parity – Interstate Remand – Delay – Rehabilitation
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71A; Sentencing Act 1991 (Vic)
Cases Cited:DPP v Fitzpatrick [2023] VCC 1883; DPP v Khodher [2013] VCC 1072; Stafford v The Queen [2022] VSCA 229; Carter v The Queen [2018] VSCA 88; Mokbel v The King [2023] VSCA 40; Kheir v The Queen [2012] VSCA 13; R v Wade [2005] VSCA 276; Karpinski v The Queen [2011] VSCA 94; DPP v Van Nguyen [2016] VCC 197; DPP v Katsonis [2024] VCC 494; DPP v Sciascia [2021] VCC 850; DPP v Grasso [2017] VCC 657; DPP v Weston [2018] VCC 1051.
Sentence:12-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | G. Haywood with P. Pickering | Office of Public Prosecutions |
| For the Accused | M. Gumbleton with N. Freijah | Emma Turnbull Lawyers |
HIS HONOUR:
1Aiden Khodher, you have pleaded guilty to a charge that between 24 December 2018 and 30 January 2019, you possessed material, namely cellulose sodium, with the intention of using that material for the purpose of trafficking in a drug of dependence.
2This is an offence contrary to s71A of the Drugs, Poisons and Controlled Substances Act and carries a maximum penalty of 10 years’ imprisonment.
3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 5 March 2024. With one exception relating to whether you obtained the assistance of your co-offender, which I will address later, that summary forms the basis upon which you are to be sentenced.
Circumstances of Offending
4In 2018 and 2019, Victoria Police, in conjunction with the Australian Criminal Intelligence Commission (ACIC) and the Australian Federal Police, conducted investigations which identified that your co-offender, Vincent Fitzpatrick, was importing cellulose sodium into Australia for use as a cutting agent in the manufacture of illicit drugs of dependence.
5As part of the joint investigation members of ACIC obtained telecommunication interception warrants and intercepted telecommunication services used by persons under investigation, including yourself. Investigators also undertook physical and other surveillance, targeting those under investigation.
6On 24 December 2018, police intercepted an SMS from Mr Fitzpatrick to you which stated, “Kev says hi”. This was a reference to an order for the importation of cellulose sodium direct from Kevin Zibo, Ansheng Company Limited in China by Mr Fitzpatrick, said to be at your direction.
7On 29 December 2018, 50 kilograms of cellulose sodium arrived in Australia.
8On 5 January 2019, you and Mr Fitzpatrick were recorded in a telephone conversation arranging to meet. Mr Fitzpatrick stated that he wanted to talk to you about “Kevin”.
9On 6 January 2019, two packages totalling 40 kilograms of cellulose sodium arrived in Australia.
10On 11 January 2019, Mr Fitzpatrick attended at Melbourne Mini Storage in Brunswick East and entered into a contract to rent a storage unit.
11On 19 January 2019, 90 kilograms of cellulose sodium was delivered from China. The following day Mr Fitzpatrick called you to say “Kevin is coming over tomorrow”.
12On 23 January 2019, you and Mr Fitzpatrick spoke and arranged to meet. During that conversation, Mr Fitzpatrick said “it looks likes Kevin’s alright”.
13On 30 January 2019, Mr Fitzpatrick sent you a message saying “Hello luv. Kev sends his regards”.
14You accept that you were party to an agreement, arrangement or understanding with Mr Fitzpatrick to obtain the 180 kilograms of cellulose sodium that was imported into Australia between 29 December 2018 and 19 January 2019. You accept that the cellulose sodium was possessed for the purpose of trafficking in a drug of dependence.
15On 1 March 2019, police executed a search warrant at the premises of Sener Yuksek, in the suburb of Fraser Rise. A large quantity of drugs was found and seized from Yuksek’s premises. Following the execution of that search warrant, you and Mr Fitzpatrick took steps to dispose of the cellulose sodium. The cellulose sodium was ultimately disposed of into the Maribyrnong River between 7 and 18 September 2019.
16It is not part of the facts alleged against you that you possessed the cellulose sodium for the purpose of trafficking beyond the date charged in the indictment, namely 30 January 2019.
17It is necessary to state, by way of background, that you were charged with a similar charge to that now before me, along with a charge of trafficking in methylamphetamine in a quantity not less than the large commercial quantity, and a charge of trafficking in 3,4-Methylenedioxy-N-methylamphetamine (MDMA) in a quantity not less than the large commercial quantity applicable. Those charges proceeded to trial. The trial commenced on 5 February 2024. On 28 February, I upheld a ‘no case’ submission in respect to the two trafficking charges and directed that verdicts of ‘not guilty’ be entered. You were then re-arraigned and pleaded guilty to the charge now before me, after it was amended.
18Your co-offender, Vincent Fitzpatrick, was sentenced by Judge Cannon on 17 October 2023.[1] I will refer to his sentence in more detail later in these sentencing reasons.
[1] DPP v Fitzpatrick [2023] VCC 1883
Personal Circumstances
19You were born in July 1989 in Iraq. You came to Australia with your parents, older sister, and younger brother in 1991. You have lived in Melbourne since your arrival, and report that you enjoyed a good and stable upbringing.
20You completed Year 12 at St Joseph’s Catholic College in 2007 and went on to complete a Bachelor of Science in Biochemistry and Chemistry at Victoria University.
21Your family owned and operated a business called the “Dreux Restaurant and Bar”. You worked in the family business until its sale in January 2023.
22In addition to that work, you have also been involved in the development of several dwellings in Maribyrnong, the renovation of your family’s home, and casual work at your brother-in-law’s construction company.
23You are in a relationship and together with your partner, you have three daughters. Your eldest daughter is 16 months, and your twin girls were born in late February of this year.
24You have relevant prior convictions. On 25 July 2013, at the Melbourne County Court, you were sentenced to a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and six months in respect of two charges of trafficking in a drug of dependence, a charge of possessing a tablet press, two charges of possessing a drug of dependence, three charges of possessing a precursor chemical, and a charge of possessing a prohibited weapon without exemption or approval. You were also fined the sum of $1,000.
25I have had the benefit of reading her Honour Judge Hampel’s reasons for sentence for that earlier offending, which occurred between 3 November 2010 and 30 August 2011.[2]
[2]DPP v Khodher [2013] VCC 1072.
26While in custody, between 2013 and 2016, you completed a Diploma of Construction. Following your release in 2016, you pursued course work in Environmental Sciences before commencing a Master of Research Program, with a focus on Alzheimer’s disease. You did not complete the Master’s program.
27I have also been informed that you have an outstanding criminal charge to be heard in Queensland relating to, as I understand it, the importation of drugs.
28Regarding the Queensland offence, I was informed that you were arrested and remanded in Queensland on 26 July 2020. You remained on remand for some 17 months until your release on bail in December 2021.
29You have remained on bail ever since your release and have been subject to onerous bail conditions, which include electronic monitoring and a curfew. You have complied with all conditions of bail and have not re-offended whilst on bail.
Sentencing submissions
30In respect of the matter before me, Dr Gumbleton, who appeared with Ms Freijah on your behalf, informed me that you initially faced an indictment containing 16 charges. Following further consideration by the Director of Public Prosecutions, an indictment was filed over alleging the three charges that went to trial before me.
31Charge 1 of the filed over indictment, until it was amended, alleged possession of 660 kilograms of cellulose sodium and plastic bags, between 6 November 2018 and 1 March 2019, with the intention of using that material for the purpose of trafficking. The amended charge to which you have pleaded guilty relates to a smaller quantity of cellulose sodium, namely 180 kilograms, and does not include the plastic bags. Moreover, the period of offending, originally some four months, was reduced to a little over one month.
32Reliance was placed by your counsel on the following matters in mitigation of penalty:
(i)you have pleaded guilty to the charge and did so at the earliest reasonable opportunity;
(ii)there has been considerable delay in having the charge against you finalised, such delay not being in any way attributable to you;
(iii)you have spent a significant period of time in custody in Queensland, to which I should have regard in a “general and broad sense”;
(iv)you have been subject to and complied with very onerous bail conditions, including electronic monitoring and curfew; and
(v)your offending is at the “lowest end of the scale”.
33As already mentioned, you acknowledge that you agreed with Mr Fitzpatrick to possess 180 kilograms of cellulose sodium for the purpose of trafficking in drugs. It was put on your behalf that although you had the requisite intention, you did not take any further steps towards manufacturing the illicit pills or had the ability to do so, let alone supplying illicit drugs to the community. It was also put that the 180 kilograms of cellulose sodium was disposed of into the Maribyrnong River, eight months after the period of possession ended.
34Dr Gumbleton submitted that the only way in which the commission of the offence could have been any less serious is if the quantity of cellulose sodium you possessed was less. It was also submitted that in all other respects, the objective gravity of your offending was at the lowest end of the scale.
35It was submitted on your behalf that the appropriate penalty for your offending is a fine. In the alternative, should I not agree that a fine is appropriate, it was submitted that you be placed on a Community Correction Order with a work component only. Although your co-offender, Mr Fitzpatrick, was sentenced to a term of imprisonment, it was submitted that a markedly disparate sentence is well justified and that an objective assessment of all the circumstances should result in a sentence that does not involve a term of imprisonment.
36Dr Gumbleton relied, in particular, on the following matters to justify a disparate sentence from that of your co-offender:
(i) Mr Fitzpatrick ‘sat’ on a sentence indication for approximately 12 months, and hence his plea was not entered at the earliest opportunity;
(ii) Mr Fitzpatrick pleaded guilty on the basis that he ordered, imported, received and stored the material the subject of the charge;
(iii) Mr Fitzpatrick possessed the cellulose sodium, plastic bags, a vacuum sealer, and ceramic pigments;
(iv) Mr Fitzpatrick possessed 680 kilograms of cellulose sodium, being approximately 3.5 times the amount you possessed, and
(v) Mr Fitzpatrick possessed those items for a period of some 11 months, not the one month for which you were charged.
Prosecution Submissions
37Mr Haywood, who appeared with Mr Pickering, on behalf of the Director of Public Prosecutions, submitted that the objective gravity of the offence is informed by factors including the weight of the material being 180 kilograms, and the fact that it was possessed between 24 December 2018 and 30 January 2019. He noted your acknowledgement that the substance may be used as a binding agent and that you had it in your possession for the purpose of trafficking in a drug of dependence. This led to a conclusion, he submitted, that 180 kilograms of cellulose sodium would be combined with a drug of dependence and that the “final product” must necessarily weigh more than 180 kilograms.
38With regard to your moral culpability, it was submitted that it is high and is informed by a number of factors including that:
(i)you are an intelligent man;
(ii)you used the assistance of Mr Fitzpatrick;
(iii)you and Mr Fitzpatrick communicated in code; and
(iv)you have previously been convicted and imprisoned for offences including drug trafficking and possession of a tablet press.
39Mr Haywood placed reliance on the sentencing remarks of her Honour Judge Hampel, and the sentencing remarks of her Honour Judge Cannon in the case of your co-offender.
40In particular, Mr Haywood referred to the sentence of Judge Hampel, where her Honour stated:
You used others to make repeated purchases of precursor chemicals on your behalf. You provided them with funds to make payments. They took delivery of the chemicals and provided them to you on request or directed that they be delivered … some items were ordered from Australia, while others were purchased from overseas online.[3]
[3] At [2]
41Mr Haywood also referred to her Honour’s remarks that you used a false name to facilitate the ordering and delivery of “material to bind substances into tablets”[4], and that you “took active and concerted steps to conceal your involvement in your activity. You used people you knew … to assist you.”[5] Mr Haywood submitted that with your offending here, you again obtained the assistance of another, namely Mr Fitzpatrick, and again used steps to conceal your identity. Thus, it was submitted, your moral culpability must be assessed as high.
[4] At [5]
[5] At [26]
42It was also submitted that the need for specific deterrence is high given that the current offence was committed approximately one year after your release on the sentence imposed by Judge Hampel. Mr Haywood further submitted that the sentencing consideration of general deterrence is also significant.
43With regard to delay, it was not disputed that the charges you faced would have been stressful to you and your family. Nor was it disputed that there have not been any subsequent convictions. However, Mr Heywood submitted there was no evidence to indicate that your attitude towards your criminality has changed from that observed by Judge Hampel in 2013, nor have you demonstrated any evidence of remorse save for the entry of the plea itself.
44Regarding the plea, the prosecution, in its written submissions, disputed that it was an early plea of guilty. However, in oral submissions, Mr Haywood appeared to accept that in view of the amendment to the charge, I should treat your plea as an early plea.
45The prosecution submitted that when regard is had to all the relevant factors, a term of imprisonment that does not involve a non-parole period is appropriate. It was further submitted that neither a Community Correction Order or a fine were appropriate dispositions, having particular regard to the fact that you possessed a significant quantity of cellulose sodium for the purpose of trafficking.
Sentencing Considerations
Nature and Gravity of Offending
46Regarding the objective gravity of your offending, I am unable to accept your counsel’s submission that it falls at the “lowest end of the scale.” Your offending was planned and pre-meditated. It was not spur-of-the-moment offending. You possessed the material for a little over one month. You took steps to distance yourself from the possession of the cellulose sodium. Mr Fitzpatrick communicated in code with you. There is no suggestion that you did not understand the coded references used by Mr Fitzpatrick.
47Furthermore, although the amount of cellulose sodium you possessed for the purpose of trafficking is significantly less than that possessed by Mr Fitzpatrick, it is still a significant quantity that was possessed and intended to be used in the preparation of illicit drugs for sale. I am not able to accept your counsel’s submission that the quantity possessed was not significant. While one can imagine offenders being in possession of much larger quantities, as was put by your counsel, and indeed as was the case with Mr Fitzpatrick, that does not render the quantity you possessed as being anything less than significant.
48180 kilograms of cellulose sodium was possessed for the purpose of it being used as a binding agent in the production of illicit drugs such as MDMA. As earlier stated, the prosecution submitted that had the 180 kilograms of cellulose sodium been used as a binding agent, the final quantity of illicit drug produced must necessarily weigh more than 180 kilograms. As a matter of mathematical logic that is correct. However, as was submitted by your counsel, the prosecution submission assumes no wastage of the material in the process. Notwithstanding that assumption, I nevertheless find that it was a very significant quantity that was intended to be produced and trafficked.
49Dr Gumbleton took issue with the prosecution submission that you obtained the assistance of Mr Fitzpatrick to commit this offence. In the absence of further evidence, I am not able to make a finding one way or the other on that disputed issue. Accordingly, I am not able to find, beyond reasonable doubt, that you obtained the assistance of Mr Fitzpatrick to commit this offence. However, it was not suggested, and nor do I find, that yours was a low or menial role in the commission of the offence. Although Mr Fitzpatrick may have been more active in the commission of the offence, I do not find that you operated at a lower level in the hierarchy.
50I accept that there is no evidence that you in fact used any of the 180 kilograms of cellulose sodium to ‘cut’ illicit drugs. It was also put by your counsel that there is no evidence that you ever saw the cellulose sodium or physically possessed it. However, it is not necessary that you in fact used the material or even saw it for the offence to have been committed. Moreover, you have pleaded guilty to possessing the material with the intention that it will be used for the purpose of trafficking in a drug of dependence. Whether it was physically in your possession or possessed elsewhere, such as in a storage unit, is not to the point. You were complicit in the commission of the offence.
51To the extent that it was submitted on your behalf that you did not have the ability to take steps towards the manufacture of illicit drugs, let alone to supply illicit drugs, in the absence of evidence, I am not able to accept that submission. At best, for you, is the fact that there is no evidence that you took any steps beyond obtaining possession of the cellulose sodium.
52It was also put on your behalf that “hundreds of kilograms of the substance was disposed of eight months after the period of possession ended” and that it was a rational inference that the 180 kilograms you possessed was amongst the material disposed of into the Maribyrnong River. Although the prosecution, in its written submissions, took issue with the suggestion that the 180 kilograms you possessed was “dumped into the Maribyrnong River”, the prosecution submission appears to be at odds with its plea opening. The prosecution plea opening, at paragraphs 15 and 16, states that you and Mr Fitzpatrick wanted to and did in fact dispose of the cellulose sodium into the Maribyrnong River. This, I was told, occurred in September 2019. In view of the prosecution opening, I accept that the 180 kilograms of cellulose sodium you possessed was disposed of into the Maribyrnong.
53Notwithstanding that I am unable to find that you obtained the assistance of Mr Fitzpatrick in the commission of this crime, and that I find that the material was disposed of some eight months after the commission of the offence, I nevertheless consider that your level of moral culpability is high.
54You clearly knew that what you were doing was wrong. You have previously been sentenced for drug offending. You were on notice from that earlier sentence of the risk of stern punishment for drug and drug-related offending. You are an intelligent man and would be well aware of the harm and misery that drugs cause to those who suffer addictions, to their families, and to the wider community. While you are not to be punished again for your prior convictions, I may have regard to them in assessing your level of moral culpability.
55Although your counsel submitted that cellulose sodium is not illegal to import and has many lawful purposes, I do not consider that this in any way mitigates your offending. The gravamen of your offending is the intent with which the substance was to be used, namely the trafficking of a drug of dependence, as well as the large quantity of cellulose sodium you and Mr Fitzpatrick possessed for that purpose.
56In assessing the gravity of your offending, I have also had regard to the maximum penalty that may be imposed for this offence, namely 10 years’ imprisonment.
Plea of Guilty
57I was informed by Dr Gumbleton that discussions occurred between counsel prior to the commencement of the trial whereby you indicated a preparedness to plead guilty to Charge 1 on the trial indictment. Your offer to plead guilty to that charge, I was told, continued during the trial process. Following the close of the prosecution case, it was ultimately accepted by the Director of Public Prosecutions first, that the no-case submission on Charges 2 and 3, that is the trafficking charges, would not be opposed, and secondly, that the particulars of Charge 1 would be amended to facilitate a plea of guilty to that charge.
58In the circumstances, I accept the submission that your plea of guilty to the amended Charge 1 was entered at the earliest available opportunity. It occurred once the charge was appropriately pleaded.
59You are entitled to the utilitarian benefits that normally attach to an early plea of guilty. You have accepted responsibility for your conduct and you have facilitated the course of justice. I am not able to find, however, that your plea is indicative of any remorse for your conduct, nor was it submitted that you are remorseful.
Delay
60The offence was committed over 5 years ago. You were charged on Summons with this matter, in its pre-amended form, as well as other charges, on 13 May 2021.
61It was not disputed that the five-year delay between the commission of the offence and sentence is not, in any way, attributable to you.
62In Stafford v The Queen[6] the Court considered that the delay of over 4 years between the commission of the offences and sentencing, none of which was attributable to the appellant in that case, imposed a heavy burden on all parties, including the appellant.
[6] [2022] VSCA 229
63I accept that as a matter of fairness, the sentence to be imposed should reflect the fact that all the charges had been hanging over you for a very considerable period, thereby keeping you in a “state of suspense” as to what might happen.[7] I accept that the charges have been a great source of stress and anxiety to you, your partner and family. Based on the charges you were facing, you understood that if convicted you would be sentenced to a very significant period of imprisonment. I also have some regard to the fact that during this period of delay you appear to have settled with your partner and young children. While on bail, you continued to work and have started a family. However, the outstanding Queensland matter precludes me from finding that you have taken significant steps towards your rehabilitation.
[7] See generally Carter v The Queen [2018] VSCA 88 and the cases referred to therein.
Parity
64Mr Fitzpatrick was sentenced to a total effective sentence of 11 months’ imprisonment in combination with an 18-month Community Correction Order. In addition to the mandatory conditions Judge Cannon also imposed conditions of supervision, mental health assessment, and treatment.
65In sentencing Mr Fitzpatrick, her Honour noted the following:
(i)Mr Fitzpatrick pleaded guilty to a charge of possession of a substance for trafficking in a drug of dependence, namely 660 kilograms of cellulose sodium between 26 October 2018 and 17 September 2019.
(ii)Mr Fitzpatrick did not plead guilty at an early stage. A sentence indication had been given some 12 months before he was sentenced.
(iii)Mr Fitzpatrick was 70 years of age at the time of sentence, and between 65 and 66 years of age when the offence occurred.
(iv)Mr Fitzpatrick did not have any previous convictions, nor any subsequent convictions. He was considered to be a person of otherwise good character. Character references were tendered on his behalf.
66Her Honour also took into account the fact that Mr Fitzpatrick suffered various medical conditions, including ischaemic heart disease with a coronary artery bypass in 2017; urinary and prostate problems; thyroid problems; bilateral inguinal hernias for which surgery had been offered but not undertaken; and severe degeneration and foraminal occlusion in his cervical spine. He also suffered from depression and anxiety.
67Judge Cannon found that Mr Fitzpatrick played an important and ‘fairly significant’ role in a large drug syndicate, knowingly possessing the cutting agent which he knew would be used to produce a most significant quantity of drugs of dependence, namely methylamphetamine and MDMA. At Mr Fitzpatrick’s plea hearing, Judge Cannon was informed that you were the head of a syndicate, and that Mr Fitzpatrick assisted you in the commission of the offence. To be clear, I am not able to make either finding against you here.
68Her Honour did not accept that Mr Fitzpatrick was remorseful for his conduct but considered his prospects of rehabilitation were “fairly good”, and less than moderate weight was placed on specific deterrence and protection of the community. Her Honour did, however, place “strong” weight on general deterrence.
69It is to be noted that her Honour gave a sentence indication to Mr Fitzpatrick on 26 June 2022 which, on 21 September 2022, he rejected. Mr Fitzpatrick’s case was then adjourned for trial but ultimately, on 29 August 2023, he pleaded guilty to the charge. With some reluctance, her Honour was prepared to maintain the sentence previously indicated, which was ultimately imposed on Mr Fitzpatrick.
70Dr Gumbleton submitted that the only matters in favour of Mr Fitzpatrick are that he did not have any criminal history and there was evidence of him suffering psychological and medical issues. Regarding your own prior convictions, it was submitted that they are now of “some antiquity” having been entered in 2013.
71The prosecution, on the other hand, submitted that there is no justification for a significant disparity in sentence. It was submitted that there were important considerations that mitigated Mr Fitzpatrick’s sentence, particularly the absence of any prior convictions, the absence of any subsequent criminal charges and convictions, his age when sentenced, and that he suffered from medical and psychological conditions.
72The offence to which Mr Fitzpatrick pleaded is clearly more serious given the quantity of cellulose sodium he possessed for the purpose of trafficking and the period of time he possessed that substance. However, Mr Fitzpatrick was much older than you and had reached the age of 70 without any criminal convictions. He was also in a poor state of health.
73You have limited but relevant prior convictions for drug-related offending. This is not an insignificant consideration. Although the offending which resulted in those earlier convictions may be of some antiquity, the offence before me occurred not long after your release from prison. As earlier stated, your prior convictions are relevant to the sentencing considerations of your level of moral culpability, specific deterrence, protection of the community from you, and your prospects of rehabilitation.
74In my opinion, there are significant differences between Mr Fitzpatrick’s scale of offending, the timing of his plea of guilty, and his personal circumstances, and your own offending, timing of the entry of the plea of guilty and personal circumstances. These differences justify a different sentence being imposed upon you to that which was imposed on Mr Fitzpatrick. I have particular regard to the quantity of cellulose sodium you each possessed for the purpose of trafficking and the time period that the substance was possessed. However, I do have some regard to the sentence imposed on Mr Fitzpatrick, in my determination of an appropriate sentence.
Rehabilitation
75As earlier mentioned, I have read the sentencing remarks of Judge Hampel when you appeared before her Honour in July 2013. In her sentencing remarks, Judge Hampel noted the considerable supports you had in life but stated that they were not sufficient to deter you from embarking on what was, in her Honour’s words, “not a single act of stupidity, but a concerted course of conduct over a considerable time.” Her Honour stated that the sentence she imposed needed to reflect specific deterrence as well as general deterrence. Her Honour considered that your remorse was limited to the impact on your family, and the fact that you still did not consider yourself to be a criminal. Despite that, her Honour was prepared to consider your then prospects of rehabilitation as reasonable. However, her Honour also noted that they depended to a great extent on you deciding to take better advantage of the opportunities you had. The offence before me was committed approximately one year after the 2013 sentence expired on 29 December 2017. It is clear that the earlier sentence did little to enhance your prospects of rehabilitation or deter you from further involvement in drug offending.
76Dr Gumbleton was cautious about making any submission concerning your prospects of rehabilitation with the Queensland matter still to be determined. He did, however, point to the fact that you have not committed any further offences since being released on bail, that you have complied with stringent conditions of bail, and that you now have responsibility for a young family. While those factors weigh in favour of your rehabilitation, I consider that your prospects, at this time, must be viewed with a good deal of caution. You are clearly a relatively young man with potential to reform but as Judge Hampel noted, your prospects depend to a large extent on you deciding to take better advantage of that potential.
Remand in Queensland
77Since the commission of this offence, you spent approximately 17 months on remand in Queensland. Although that time is not related to the matter before me, it was submitted that I may have regard to that period on remand in a “broad and general way.” It was further put that your time on remand in Queensland was particularly onerous, having occurred during the peak of the COVID‑19 pandemic, and that you were effectively isolated from friends and family. It was also submitted that you experienced many days of 24‑hour lockdown confinement.
78The prosecution accepts that I have a discretion to take that time into account. This is clear from the decisions in Mokbel v The King[8] and Kheir v The Queen,[9] to which I was referred. However, the prosecution submitted that given your period on remand was between July 2020 and December 2021, and the lapse of time since then, I ought not make a reduction in your sentence for that period, or at most, only a moderate one.
[8] [2023] VSCA 40
[9] [2012] VSCA 13
79In R v Wade[10] Maxwell P stated that :
… persons standing for sentence are entitled to expect that, where a submission is made that an amount of pre-sentence detention should be taken into account, the sentencing Judge should clearly state that the matter has been considered, whether or not it affects the final result. If, as in Chimirri's Case, something less than the full amount of the relevant pre-sentence detention is taken into account in the sentencing, it is important that the sentencing Judge state to what extent it has been taken into account. The necessity for that specification is to inform the court which will be dealing with the unrelated offence on a later date (assuming the person to have been convicted of it). The later court needs to know that there is a part of that detention period which was not taken into account on the previous occasion, such that it remains to be taken into account in accordance with s.18.[11]
[10] [2005] VSCA 276
[11] Ibid [14]
80Wade was followed in Karpinski v The Queen.[12] At paragraph 53, Tate JA stated:
Maxwell P concluded that time spent on remand in relation to charges pending for unrelated offending was a relevant consideration that should have been taken into account by the sentencing judge, but was not. This was a specific error that had the result that the sentencing discretion miscarried…
[12] [2011] VSCA 94
81It is clear that in the exercise of my discretion, I may have regard to the time you have spent on remand in Queensland. Ordinarily, such detention on unrelated charges is to be taken into account at the first opportunity in the exercise of the Court’s discretion. I do not consider that the lapse of time between the period you have spent on remand in respect of the Queensland matter and my sentencing for this offence is particularly long in the circumstances or a sufficient basis for me to attach little or no weight to it. I have regard to the fact that your time on remand in Queensland was lengthy and was served under onerous conditions. Because of these considerations in particular, I will give some weight to your time on remand in Queensland and reduce the sentence that I would otherwise have imposed. I shall return to this when sentencing you.
Current Sentencing Practice
82The prosecution placed some reliance on the Sentencing Advisory Council’s (SAC) Sentencing Snapshot for this offence. This snapshot reflects sentencing outcomes in the higher courts from 1 July 2017 to 30 June 2022. The snapshot revealed that approximately 83 percent of offenders received terms of imprisonment and 17 percent received Community Correction Orders.
83Dr Gumbleton submitted, correctly, that current sentencing practice is only one factor that I must take into account. He also submitted that the snapshot does not deal with sentences imposed in the Magistrates’ Court and nor does it identify a sentencing practice.
84In my consideration of current sentencing practice, I have had regard to the submissions of both the prosecution and defence. I am aware of the limitations of the SAC snapshots, but they are not irrelevant. I have also had regard to a number of decisions of this Court,[13] including that of your co-offender, Mr Fitzpatrick, and the sentencing summaries set out in the Judicial College of Victoria’s Sentencing Manual.
[13] DPP v Van Nguyen [2016] VCC 197; DPP v Katsonis [2024] VCC 494; DPP v Sciascia [2021] VCC 850; DPP v Grasso [2017] VCC 657; DPP v Weston [2018] VCC 1051.
85Consideration of current sentencing practice assists in promoting consistency of approach, but sentences in other cases of the same offence, are not sentencing precedents. Such cases do not set a numerical limit on the upper and lower limits of the appropriate sentence in any particular case. No case that I have considered is on all fours with your case, but they nevertheless provide some assistance. In the end, each case must be decided on its own facts having regard to the many different circumstances, both objective and subjective, and paying due regard to the sentencing objectives and considerations in the Sentencing Act.
Deterrence, Denunciation, Just Punishment and Protection of the Community
86The sentence to be imposed, in my opinion, must give primacy to considerations of general and specific deterrence, denunciation, just punishment and protection of the community.
87Notwithstanding the submissions of your counsel, I do not consider that a fine or a Community Correction Order alone would be proportionate to this offending, or sufficiently reflect the objective gravity of your offending. Nor would such dispositions give due regard to considerations of deterrence, denunciation, just punishment and community protection.
88In my opinion, and having regard to the sentence imposed on Mr Fitzpatrick for offending that was objectively much more serious than yours, a sentence of 6 months’ imprisonment combined with a Community Correction Order is the appropriate sentence. However, I propose to make an allowance of 6 months in the sentence I have found otherwise appropriate, having regard to the 17 months spent on remand in Queensland and to the principle referred to in cases such as Wade, Kheir and Karpinsky.
89Accordingly, and making that 6-month allowance, on the charge of possessing material for the purpose of trafficking in a drug of dependence, you are convicted and, subject to you consenting, I propose to place you on a Community Correction Order for a period of 12 months with the following conditions:
Mandatory Conditions
(i)You must not commit another offence for which you could be imprisoned during the time that the order is in force;
(ii)You must comply with any obligation or requirement prescribed by regulation 15 of the Sentencing Regulations 2021;
(iii)You must report to, and receive visits from, the Secretary (or delegate);
(iv)You must report to the Community Corrections Centre within two clear working days of the order starting;
(v)You must let a community corrections officer know within two clear working days of you changing your address or job;
(vi)You must not leave Victoria without first getting permission to do so from the Secretary (or delegate);
(vii)You must obey all lawful instructions from and directions of the Secretary (or delegate).
90I will also impose an additional condition requiring you to undertake 130 hours of unpaid community work to be completed within 6 months of the order commencing.
91Pursuant to s 6AAA Sentencing Act, had it not been for your plea of guilty the sentence I would otherwise have imposed is one of 15 months’ imprisonment.
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