Director of Public Prosecutions v King
[2021] VCC 1025
•26 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01896
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT ANTHONY KING |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2020, 1 February and 12 May 2021 | |
DATE OF SENTENCE: | 26 July 2021 | |
CASE MAY BE CITED AS: | DPP v King | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1025 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in diacetylmorphine commercial quantity – category 2 offence – cultivating Cannabis L – possession of drugs of dependence namely tetrahydrocannabinol, methylamphetamine, and diazepam – trafficking on a single day – trafficking in part to satisfy heroin addiction – prior convictions for drug offending – Verdins considerations – efforts at rehabilitation – poor physical health – burden of imprisonment increased – early pleas of guilty – pleas of guilty entered during pandemic – significant utilitarian benefit – remorse – forfeiture of lawfully acquired property
Legislation Cited: s5(2A) Sentencing Act 1991
Cases Cited: R v Van Boxtel [2005] VSCA 175; Verdins v R (2007) 16 VR 269; Markovic v R (2010) 30 VR 589; R v Koumis (2008) 18 VR 434; R v Lacey [2007] VSCA 196; R v Dang (2009) 197 A Crim R 53; R v McLeod [2007] VSCA 183; Hendricks v The Queen [2014] VSCA 185; Mileto v The Queen [2014] VSCA 161; Gregory (a pseudonym) v The Queen [2017] VSCA 151; DPP v Dalgliesh (2017) 262 CLR 428; DPP v Condo [2019] VSCA 181; Lytras v The Queen [2020] VSCA 150; Gayed v The Queen [2021] VSCA 141; R v Nagy [1992] 1 VR 637; R v Lacey [2007] VSCA 196; Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of imprisonment of 5 years and 4 months with a non-parole period of 3 years and 4 months. Forfeiture order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Farrell | Office of Public Prosecutions |
| For the Accused | Mr M. Allen | Gallant Law |
HIS HONOUR:
1 Brett Anthony King, you have pleaded guilty to the following charges:
· Charge one - trafficking in a drug of dependence, namely diacetylmorphine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence;
· Charge two - cultivating a narcotic plant, namely Cannabis L; and
· Charge three - possessing drugs of dependence, namely tetrahydrocannabinol, methylamphetamine, and diazepam.
Circumstances of offending
2 The circumstances of your offending are set out in the amended summary of prosecution opening which I will summarise as follows.
3 On 1 February 2019 you were living at an address in
Pioneer Drive, Rockbank, with your co‑offender, Tania Clark. At approximately 7.30 am that day, police attended your address to execute a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981.
4 Ms Clark let the police into the house. Upon entry, police noted the strong smell of cannabis. During the search, police discovered and seized a number of items from various locations within the house, the backyard, and other buildings on the property.
5 In the master bedroom, police found zip-lock bags containing methylamphetamine, scales, five diazepam tablets, a plastic bag containing cannabis, multiple empty zip-lock bags, a syringe, a plastic bag containing .8 grams of diacetylmorphine and zip-lock bags containing cannabis.
6 In the kitchen, police found a plastic bag containing cannabis, a vacuum-sealed bag containing cannabis, and two DVD cases containing cannabis seeds.
7 In the lounge room, police found a plastic bag containing numerous other bags which contained tetrahydrocannabinol.
8 In the backyard, police located five large cannabis plants in pots. In a shed, and within a hothouse with lighting, were eighteen small cannabis seedlings in pots.
9 In the garage, police found a solid rectangular item that consisted of clothing taped in layers. The clothing layers were removed by police, and further plastic packaging layers were noted around what appeared to be rectangular blocks of a solid substance. These were later found to be two rectangular blocks of diacetylmorphine, that is, heroin. Fingerprint testing of the plastic inner layers of the packaging found fingerprints belonging to you. Your fingerprints were also found on the outer layers of the packaging.
10 Also found at the property was a book on cannabis horticulture and a heroin purity-testing kit.
11 You and Ms Clark were arrested and taken to the Melton Police Station.
12 Testing of the items seized confirmed the following:
(a)Diacetylmorphine with weights and purities of -
(i) 0.8 grams at 84% purity; (this is the heroin found in the master bedroom)
(ii) 101.9 grams at 91% purity; and
(iii) 343.7 grams at 88% purity.
(These two quantities were found in the garage wrapped in the clothing.)
(b)Tetrahydrocannabinol in four items with a total weight of 6.6 grams.
(c)Methylamphetamine in one item weighing 0.1 gram.
(d)Diazepam in the five tablets weighing less than 2 grams.
13 The diacetylmorphine found totalled 446.4 grams of mixed substance or 395.85 grams of pure substance, which is 1.58 times the commercial quantity for that drug in its pure form.
14 Testing of the cannabis found returned the following weights:
(a)The five large cannabis plants weighed 5.7 kilograms;
(b)The eighteen small plants weighed 12.1 grams;
(c)The remaining items of cannabis in various forms totalled 833.5 grams.
15 The total weight of cannabis found at the premises was 6.55 kilograms.
16 The tetrahydrocannabinol, methylamphetamine, and diazepam found during the search form the basis of Charge 3.
17 You were interviewed and answered “no comment” to all questions put to you.
Maximum penalties
18 Trafficking in a commercial quantity of a drug of dependence carries a maximum penalty of 25 years’ imprisonment. A commercial quantity of diacetylmorphine is 500 grams in a mixture with other substances or 250 grams pure.
19 Trafficking in not less than a commercial quantity of a drug of dependence is a category 2 offence for the purposes of s5(2H) of the Sentencing Act. As such, I must make an order under Division 2 of Part 3, other than a sentence of imprisonment in addition to making a community correction order in accordance with s. 44, unless I am satisfied one of the subsections of s5(2H) is in existence.
20 Cultivation of a narcotic plant carries a maximum penalty of one year imprisonment and/or 20 penalty units if I am satisfied, on the balance of probabilities, that the offence was not committed for a purpose related to trafficking in that narcotic plant, otherwise a maximum penalty of 15 years’ imprisonment. A trafficable quantity of Cannabis L is 250 grams or ten plants.
21 The maximum penalty for possession of a drug of dependence is one year imprisonment and/or 30 penalty units if I am satisfied, on the balance of probabilities, the offence was not committed for a purpose related to trafficking in those drugs, or five years’ imprisonment and/or 400 penalty units in any other case.
Prior convictions
22 You have admitted your prior convictions. They show seventeen separate court appearances covering the period March 1992 to November 2011. You have numerous prior convictions for drug-related offending, including five convictions for drug trafficking, the last of which was at Broadmeadows Magistrates’ Court on 5 September 2001. There are many convictions for using and possessing drugs of dependence. You have previously been sentenced to terms of imprisonment.
23 Your last set of convictions, on 16 November 2011, were for possession of cannabis, cultivating cannabis, possession of hashish, possession of heroin, and possession of LSD. You were convicted and placed on a community-based order for a period of 12 months with conditions including that you undergo assessment and treatment for alcohol and drug addiction and psychological issues. You did not breach that order.
Background and personal circumstances
24 You were born in 1964 and are now 56 years of age. You are the eldest child in a sibship of four. Your parents had a good marriage and remain together to this day. There were no issues within the family. Despite that supportive background, it was put that your formative and teenage years were troubled. You attended four different primary schools because your family moved house on several occasions. This transience, I was told, caused you some general anxiety. Your mother reported you were shy and had great difficulty adjusting.
25 You commenced your secondary education at Keilor Heights High School before moving to Tottenham Technical School. You were expelled in Form 2 because of poor attendance. Soon after your expulsion, you were sent to the Turana Youth Training Centre, and later, the Bayswater Boys’ Home. At the age of 15 years, whilst under the supposed care of your grandmother, you began living independently with friends although you continued to maintain contact with your family.
26 You found employment as a boiler maker. You lost that job after some six years when the business closed down. You then worked in road maintenance for a local council, and then in window manufacturing and installation. You resigned from that job after about 6 months as you began to experience anxiety and panic attacks. That was your last job. Approximately 30 years ago you were placed on the Disability Support Pension by reason of mental illness.
27 You have a daughter, aged 15, from a relationship which ended approximately four years ago. Your relationship with your daughter appears to be a very close one. You report that your daughter is suffering from mental health issues and difficulties with her education, which have worsened since your incarceration. You speak to your daughter on a weekly basis from the prison by telephone.
28 You have a long history of drug use. You commenced using cannabis at about the age of 15. You later started to use heroin and you acknowledge you are a drug addict. There have been periods of abstinence, including a relatively lengthy period following the successful completion of the community-based order in 2011. However, at the time of these offences, you were in the grips of a severe addiction. Your relapse followed a number of distressing events in your life, including the death of your grandmother, the death of a younger brother and the breakdown of your relationship with the mother of your daughter in 2016. Several months before the commission of these offences you commenced a relationship with Ms Clark, who herself was a user of heroin.
29 Exhibit D2 is a report of Carla Ferrari, forensic psychologist.
Ms Ferrari assessed you on 17 September 2020.
30 Ms Ferrari refers to several traumatic incidents that occurred during your childhood, including being the victim of an aggravated burglary and, on another occasion, being trapped in a building that was on fire. You told
Ms Ferrari you were institutionalised at 13 or 14 years of age due to your association with the wrong crowd and engaging in delinquent behaviour. You were exposed to significant psychological abuse whilst you were in care which is outlined in Ms Ferrari’s report.
31 You reported longstanding anxiety since childhood, as well as the later development of panic attacks. You have been prescribed antidepressants in the past and you are currently on Avanza. You were recently diagnosed with emphysema and, I was told, you are likely to need an oxygen tank within the next 12 months. This has added to your depression.
32 You told Ms Ferrari you smoked cannabis throughout most of your life and estimate using up to 7 grams per day at the time of your offending. You said cannabis helps with your anxiety and panic attacks. You have used other drugs, such as LSD and methylamphetamine, and you began using heroin at the age of 21 or 22. You have been prescribed methadone since the age of 27. You have been abstinent whilst in custody and have completed several alcohol and drug programs since your remand.
33 In relation to your current offending, you told Ms Ferrari that you resorted to drug use to cope with a number of stressors in your life. You relapsed into heavy drug use after you commenced a relationship with Ms Clark. You said that a person known to Ms Clark wanted to purchase a large quantity of heroin. As you had a contact, you agreed to arrange the transaction. You asserted that instead of the package being delivered directly to that person, it was instead delivered to your home address. You stated the cultivation of cannabis was for your personal use and explained you would grow up to 5 plants a year which would last you the year.
34 You were assessed by Ms Ferrari using the depression anxiety stress scale. This is a self-report questionnaire designed to measure your experience of symptoms of depression, anxiety and stress during the week prior to testing. Your results indicate severe symptoms of depression, anxiety and stress requiring immediate treatment to prevent further decompensation. You were also tested for the presence and severity of post-traumatic stress disorder. The results indicated clinically significant post-traumatic stress disorder symptoms. In Ms Ferrari’s opinion, you exhibit symptoms of post-traumatic stress disorder and have described a history of persistent depressive disorder and major depressive disorder. You also meet the criteria for opioid use disorder and cannabis use disorder which have been in remission since February 2019. Your risk of reoffending is considered moderate.
35 Mr Allen, who appeared on your behalf, informed me that you are receiving some treatment for your mental health issues whilst in custody. The Justice Health records confirm a diagnosis of generalised anxiety disorder for which you receive medication and assistance from a psychiatric nurse.
36 In addition to your mental health issues, Mr Allen submitted your poor physical health is causing you significant discomfort in the prison environment and that you feel particularly vulnerable to the risk posed by COVID-19.
37 Exhibit D5 is a report of Dr Jared Cairns dated 20 November 2020. Dr Cairns reported you suffer from the following conditions:
· hepatitis C,
· chronic obstructive pulmonary disease,
· eczema,
· opiate dependence,
· depression,
· gout,
· gastro-oesophageal reflux disease, and
· right shoulder bursitis.
38 With regard to your chronic obstructive pulmonary disease, your symptoms at the time of Dr Cairns’ report were a mild shortness of breath, at times worse with exertion. He stated acute deterioration is managed on site with medical intervention including oral antibiotics and steroids. The treatment you are receiving includes regular inhaler medication and chest physiotherapy. You have declined referrals to St Vincent’s Hospital for further investigations due to your concerns of being transported via Port Phillip Prison. Your prognosis is assessed as poor. Chronic illness may be managed with medical treatment, but your compliance is an issue resulting in sub-optimal treatment.
39 Dr Cairns reported you are receiving medication for depression, which he stated is a chronic condition requiring ongoing treatment. At the time of his report, you were experiencing ongoing shoulder pain and discomfort which was being managed with corticosteroid injections and ongoing physiotherapy.
40 You are on a long-term medical certificate recommending you not engage in employment within the gaol. Dr Cairns noted you have a full range of primary, secondary and tertiary health care available in prison to manage your conditions. Tertiary care, however, is provided through St Vincent’s public hospital. Prisoners, he said, have a similar level of public medical care within the custodial setting as they would in the community.
41 As to your vulnerability to COVID-19, your risk is increased by reason of your chronic lung disease. Dr Cairns noted, however, Corrections Victoria has policies and protocols in place to minimise the risk of the spread of COVID-19 within the prison. These have, he said, been successful in maintaining a COVID safe environment.
42 Despite your physical difficulties, you have nevertheless been able to participate in and complete a number of educational and rehabilitation programs, including drug treatment programs.
43 You also continue to enjoy the ongoing support of your parents, sister and daughter through regular telephone contact.
44 Mr Allen submitted your poor physical health is a matter that increases the burden of your incarceration. He submitted that your inability to work within the gaol deprives you of the opportunity to keep occupied and engage in any activity that would assist your rehabilitation and give you a sense of meaning and purpose. Similarly, he submitted, your opportunity to engage in recreational activities and socialise with other prisoners is also significantly reduced.
45 Mr Allen relied on the decision of Van Boxtel[1] submitting that gaol will be a greater burden on you by reason of your poor state of physical health.
[1]R v Van Boxtel [2005] VSCA 175
46 Mr Allen also relied on your mental illness in mitigation of your sentence. He noted the prison records show you have been receiving treatment for depression since June 2019. In particular, applying the principles set out in Verdins,[2] Mr Allen submitted that general and specific deterrence should be moderated; your time in custody will weigh more heavily on you than it would on a person in normal mental health; and there is a serious risk imprisonment will have an adverse effect on your mental health.
[2]Verdins v R (2007) 16 VR 269
47 Mr Allen noted the tension between Ms Ferrari’s opinion that the test results indicated you suffer from severe symptoms of depression, anxiety and stress which impact on your functioning and require immediate treatment to prevent further decompensation, and the report of Dr Cairns who noted you suffer from mild depressive symptoms reported in August 2020. Mr Allen submitted I should prefer the opinion of Ms Ferrari, an expert forensic psychologist, to that of Dr Cairns.
48 Mr Allen also relied on the anxiety your separation from your daughter is causing you, particularly in the knowledge that she is experiencing educational and mental health difficulties. He submitted this is a discrete matter that ought to mitigate sentence. Reliance was placed on the Court of Appeal’s decision in Markovic v R.[3]
[3] (2010) 30 VR 589
49 Mr Allen made a number of submissions in relation to the nature and gravity of your offending. First, the offending was committed in the context of your long-standing mental health issues which you moderated through opioid and cannabis use. He submitted your mental health issues played a significant underlying role in your offending and predisposed you to substance abuse in the first place.
50 Next he submitted the offending for which you are to be sentenced related to a single day only.
51 Mr Allen submitted that your purpose in trafficking was to feed your own drug addiction. Your addiction, which commenced at a young age, was relied on as a factor in mitigation. Reliance was placed on the Court of Appeal decisions of R v Koumis[4] and R v Lacey.[5]
[4] (2008) 18 VR 434
[5] [2007] VSCA 196
52 Mr Allen submitted you engaged in the trafficking not out of greed or for the opportunity to make money. Rather, you were assisting a friend of Ms Clark to purchase heroin. You used your connections to obtain the heroin which was then to be passed on to the friend. You instructed that you were to receive half an ounce of heroin for use by you and Ms Clark.
53 Mr Allen submitted I should be satisfied that the cultivation of the cannabis plants was not for purposes related to trafficking. He relied on the quantity of cannabis you cultivated, its weight, the amount of usable plant, the plants general appearance and your long history of using significant quantities of cannabis. There was evidence, he submitted, of cannabis use within the house. Mr Allen also submitted the cultivation was not by means of a sophisticated system. He also relied on an absence of evidence commonly associated with cannabis trafficking, such as drug related communications, ‘tick sheets’, and commercial scales.
54 Mr Allen submitted that if I am not satisfied on the balance of probabilities your cultivation was not for any purpose related to trafficking, it does not follow that I should be satisfied you were cultivating for the purpose of trafficking. Such a finding would be a matter adverse to you and would need to be established beyond reasonable doubt.
55 In respect to charge three, Mr Allen submitted I should also be satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking. He submitted that, whilst not determinative of the issue, the prosecution conceded this point regarding to charge 3.
56 Reliance was also placed on your early pleas of guilty, remorse, prospects of rehabilitation, and parity in sentencing with Ms Clark, although it was acknowledged there were clear differences between you, including Ms Clarke being sentenced on a less serious charge in relation to the heroin.
57 Ms Clark’s matters resolved at committal hearing on 19 December 2019. She pleaded guilty to a charge of possession of heroin, cultivation of cannabis, possession of cannabis and committing an indictable offence whilst on bail. The possession of heroin charge included the items found in the garage and the property. She was sentenced to 321 days imprisonment and a 12-month community correction order.
58 Ms Farrell, who appeared on behalf of the Director of Public Prosecutions, submitted that your offending was serious, particularly charge one where the amount of heroin trafficked was 1.58 times the commercial quantity applicable to that drug. As to your reason for trafficking, Ms Farrell disputed your explanation. She correctly stated that insofar as you rely upon that to mitigate your culpability, the onus was upon you to satisfy the Court on the balance of probabilities.
59 Ms Farrell also submitted that in relation to both the trafficking charge and the cultivation charge, there was evidence of enrichment in the form of your interest in a house worth $345,000, a car worth in excess of $56,000 and $7,100 in cash. The house and car are in your name and, at the time of
Ms Farrell’s original submissions, were the subject of contested forfeiture proceedings.
60 Ms Farrell submitted that having regard to the system of cannabis cultivation, the size of the 5 healthy cannabis plants, the 18 cannabis seedlings being grown under lights in a hot house, the finding of scales and the finding of cannabis in vacuum sealed bags, I should not be satisfied the cultivation was not committed for any purpose related to trafficking in that drug. It was accepted by Ms Farrell the possession of the drugs listed in charge three was not for any purpose related to trafficking.
61 Ms Farrell also submitted I should prefer Dr Cairns’ opinion and what is set out in the Justice Health records to the opinion of Ms Ferrari concerning the severity of your mental health issues.
62 Ms Farrell submitted that significant weight should be attached to general and specific deterrence, particularly having regard to your criminal history. It was submitted your prospects for rehabilitation are poor. Reliance was placed on the decision of Gregory.[6]
History of Proceedings
[6]Gregory (a pseudonym) v The Queen [2017] VSCA 151
63 The hearing of your plea has had a lengthy history. I won’t go into the full chronology save to note that it has been listed for plea on 6 October 2020,
29 October 2020, 26 November 2020, 1 February 2021, 9 April 2021 and
12 May 2021.
64 On 9 March 2021, Mr Allen filed further written submissions. They related to your property in Pioneer Drive, Aintree, which is the subject of a restraining order made pursuant to section 18 Confiscation Act 1997. The property was restrained for the purpose of satisfying potential orders under that Act, including to satisfy any forfeiture orders that might be made.
65 In his written submissions, Mr Allen submitted the Aintree property had been lawfully acquired and as you were to be sentenced at a time when the proceedings under the Confiscation Act had not yet been determined, I ought to give “the possibility of forfeiture some, but indefinite, weight in the overall sentencing synthesis”. Mr Allen relied, in particular, on the Court of Appeal’s decision in R v Dang.[7]
[7] (2009) 197 A Crim R 53
66 Ms Farrell filed written submissions in response stating there was no evidence before the Court the Aintree property had been lawfully acquired, noting that s5(2A) Sentencing Act distinguishes between forfeiture of property the proceeds of crime and forfeiture of lawfully acquired property that was used in, or in connection with, the commission of the offence or was substantially derived or realised from such property.
67 The matter was next listed before me on 9 April 2021 at which time it was adjourned for further plea to the 12 May 2021. Mr Allen sought time to obtain evidence proving the property had been lawfully acquired. It was also then anticipated you would withdraw your exclusion application before the resumed plea hearing.
68 Both parties accept that the Aintree property is subject to automatic forfeiture under s35(1) of the Act unless it becomes subject to an exclusion order. This is by reason of charge one on your indictment being a schedule two offence within the meaning of the Confiscation Act.
69 Ms Farrell submitted, correctly, that you bear the onus of satisfying the court the anticipated forfeiture should be regarded as a mitigating circumstance. She relied upon the decision of R v McLeod.[8]
[8] [2007] VSCA 183 [19]-[21]
70 On 12 May, at the further plea hearing, I was informed that your application for an exclusion order had been withdrawn. Thus, the Aintree property, your car and the cash found at your premises will be, if not already are, automatically forfeited. Accordingly, s5(2A) Sentencing Act comes into operation with greater certainty if I am satisfied the forfeited property was lawfully acquired.
71 At the resumed plea hearing, evidence was adduced on your behalf, both by way of affidavit and oral evidence, to establish that the Aintree property was lawfully acquired.
72 Your solicitor, Lauren Cassimatis, swore an affidavit stating, on your instructions, that in 2017 you purchased the Aintree property for $450,000 with funds from lawful sources including:
(a) The net proceeds of the sale of a property you owned in Dorcas Lane, Taylors Hill, which itself was lawfully acquired. The Dorcas Lane property was sold by you in 2017 for $599,000, it having been purchased in 2005 for $250,000. Most of the money used to purchase Dorcas Lane came from a mortgage loan with $25,000 being contributed by family members.
(b) A loan of $40,000 from your sister Lisa McLeay.
(c) A mortgage loan of approximately $72,000 from Liberty Financial, a licensed-based financial services company.
73 Your monthly repayments on the Aintree property were $340. They were paid from your Disability pension which was $870 per fortnight.
74 Supporting documents were attached to Ms Cassimatis’ affidavit.
75 I also heard evidence from your mother, Helen King and your sister, Lisa McLeay.
76 Your mother confirmed she and your father contributed $10,000 by way of gift to the purchase of the Dorcas Lane property. That money came from their savings having operated businesses for approximately 50 years. Your mother was also aware of $5000 having been given to you by your grandmother for the purchase of the Dorcas Lane property and $10,000 having been given to you for that purchase by your former father-in-law, Bill Richardson. Your mother remains in regular contact with you and stated that you are devastated in the knowledge the Aintree property is to be forfeited. Your mother’s evidence was not challenged.
77 Your sister gave evidence that she in fact loaned you $45,000 for the purchase of Aintree. Your sister is employed as a financial controller and HR manager with a Melbourne based company. She has been employed with that company for almost 25 years. She gave evidence you told her you wanted to sell Dorcas Lane and purchase Aintree as this would provide you with opportunity to have greater equity in your home and reduce your mortgage payments. She paid to the real estate agent selling Aintree the sum of $45,000 as the deposit on the purchase of the house. Your sister obtained the deposit money from the equity she has in her home using her bank redraw facility. Your sister also has power of attorney over your financial affairs and so is aware of the state of your finances.
78 Your sister maintains regular contact with you. She stated you were very distraught when you learned your property was to be forfeited. She stated you cried a lot on the phone and were anxious about where you would live upon your release. She can provide you with temporary accommodation upon your release. Under cross examination Ms McLeay stated she obtained the power of attorney in April 2017.
79 Having regard to the evidence called on your behalf I accept, on the balance of probabilities, that the Aintree property was lawfully acquired. I found both your mother and sister to be impressive witnesses. They were not challenged as to the substance of the relevant considerations. I accept it is a fair inference to be drawn from the evidence that the mortgage repayments came from your Disability pension.
80 Your equity in the Aintree property, on the figures set out in the exhibited documents, is approximately $338,000.
81 Mr Allen’s submissions were directed only in respect of the Aintree property. He did not submit I should also have regard to the forfeiture of the car and the cash. You have no other real property and, at your age and in your poor state of health, it was submitted that the loss of your property has an even greater punitive impact. You will not have your home to go to upon your release.
82 Mr Allen referred me to the decision of Hendricks v The Queen,[9] relying in particular, on the following passages from the reasons of Redlich and Weinberg JJA, at paragraphs 25 and 26:
25 … The Court concluded that the quantifiable loss suffered by the appellant was a ‘mitigatory factor ... warrant[ing the] imposition of a lesser sentence’… In coming to that conclusion, the Court referred to Redlich JA’s comments in R v Pajic:
Forfeiture of the appellant’s lawfully acquired property is a mitigatory factor in sentencing since it placed the appellant in a worse position than he was before the commission of the offence. It therefore had a punitive and a deterrent effect. The sentencing principle of proportionality required that the effect of the forfeiture on the appellant and whether it may have had a substantial deterrent effect should be taken into account.[12]
26 There is no doubt that the subsequent forfeiture of the applicant’s home … has had a devastating effect upon him. The applicant had significant equity in the property, perhaps of the order of $60,000 in value, which was lawfully acquired by being left to the applicant in his mother’s estate, as evidenced in affidavit material provided to this Court. This would have provided him with security in the future. Given his poor health and his age, it is unlikely he will ever again own property. These factors also limit his potential earning capacity.
[9] [2014] VSCA 185
83 Mr Allen pointed to the significant difference in the equity you have in the Aintree property and that of Mr Hendricks’ equity. He further submitted that Mr Hendricks had his sentence of 18 months, with six months suspended for a period of 18 months, reduced to a sentence of eight months because of the forfeiture. It should be noted, however, there was no point of principle decided by their Honours and that they commented the applicant “may consider himself fortunate to have been dealt with somewhat leniently by [the] Court.”[10] I do not consider that the reduction in sentence in the case before their Honour’s was intended to set any sentencing precedent. In
Mileto v The Queen,[11] for example, the forfeiture of $310,000 of the applicant’s interest in the subject property resulted in slight amelioration only of 6 months of the head sentence and 3 months of the non-parole period. In my opinion the level of mitigation to be afforded because of forfeiture will depend on all the facts and circumstances of this case, including the amount of forfeiture, its impact upon your future, and its punitive and deterrent effects.
[10] Ibid [29]
[11] [2014] VSCA 161
Sentencing Considerations
84 The offence of trafficking in a commercial quantity of heroin is a serious offence as is clear from the maximum penalty of 25 years that may be imposed for such trafficking.
85 You should know, from your own experience, the devastation and misery that drug trafficking causes to the lives of those who use and are addicted to drugs such as heroin. That devastation and misery extends to the families of those addicted and to the community generally.
86 The learned prosecutor referred to the decision of Gregory,[12] submitting that I need to be cautious in considering sentencing cases before that decision was decided. I accept that submission in a general sense. There have, however, been a number of decisions since Gregory was decided relevant to the issue of sentencing practice including DPP v Dalgliesh,[13]
DPP v Condo,[14] Lytras v The Queen[15] and more recently,
Gayed v The Queen.[16] It is seems clear, as was stated in Gayed, that “the ‘uplift’ effect in Gregory is neither a determinative nor a controlling factor in the sentencing calculus.”[17] That is not to say it is irrelevant. As the Court stated in Lytras, “it must be acknowledged and the rationale behind it being given due weight,” however, I am to sentence according to all the relevant individual factors in your case.[18] Current sentencing practice, to which I have had regard, is but one of a number of factors to be considered. Each sentence to be imposed requires an individualistic approach having regard to a number of considerations.
[12] [2017] VSCA 151
[13] [2017] HCA 41; (2017) 262 CLR 428
[14][2019] VSCA 181
[15][2020] VSCA 150
[16] [2021] VSCA 141
[17] Ibid at [29]
[18]Lytras op cit. at [58]
87 You had in your possession for the purpose of trafficking 446.4 grams mixed or 395 grams of pure heroin. That is, you trafficked in 1.58 times the commercial quantity of that drug in its pure form. The quantity of drug you had was getting close to the large commercial quantity of that drug, which is 500 grams pure.
88 The quantity of heroin trafficked is a significant factor in the sentencing exercise. Other things being equal, the greater the quantity trafficked, the more serious the offence.[19] Other important considerations include the role of the offender in the trafficking, the duration of the trafficking offence and the motivation for trafficking.
[19]Gregory op cit. at [24]
89 Your explanation to Ms Ferrari for trafficking in heroin and adopted by your counsel, as I set out earlier, was to arrange the supply of heroin to a friend of Ms Clark’s in exchange for half an ounce of heroin. You assert, in effect, the heroin was mistakenly delivered to your home. Your explanation was disputed by the learned prosecutor. Insofar as you rely on that explanation to mitigate sentence, as I commented to Mr Allen during the plea hearing, I would need to be satisfied of it on the basis of evidence and on the balance of probabilities. No evidence was called on the matter and I cannot be satisfied to the requisite standard it mitigates penalty.
90 In any event, even on your explanation, had it not been for police intervention, in my opinion, your offending would have seen a significant quantity of heroin disseminated into the wider community impacting on its vulnerable and addicted members. On your explanation, you were facilitating the movement of that significant quantity of heroin. You could not have considered that the recipient of that heroin was going to keep it for himself or herself and not further traffick in or disseminate the drug. That would be fanciful. It was too large a quantity for any other purpose. I note also the purity of the heroin found in the garage was very high, between 88 and 91 per cent.
91 Furthermore, by your own admission, you engaged in the trafficking for reward. You instructed Mr Allen you were to receive half an ounce of heroin which was then to be shared between yourself and Ms Clark. As stated, your assertion was disputed and I have heard no evidence on the issue. I am not able to make any finding as to what exactly you expected to receive by way of reward. It is probable however, in my opinion, you engaged in trafficking to satisfy, at least in part, your own addiction to heroin.
92 I also have significant regard to the fact you fall to be to be sentenced for trafficking and cultivation on a single day only. That is the extent of the trafficking and cultivation alleged in the charges. It was not alleged there were any aggravating factors present in your offending.
93 I do not consider, as was submitted by the learned prosecutor, your ownership of your home is evidence of enrichment arising from the charges before me. Although a large sum of money was found in your possession, and you also owned a car valued at some $56,000, I am not satisfied to the requisite criminal standard the money and car is evidence of enrichment arising from the charges. There is no evidence of sales of drugs and neither the car nor the money is the subject of any criminal charges.
94 I am not persuaded on the balance of probabilities your cultivation of the cannabis was not for purposes related to trafficking in that plant. The onus of establishing this falls on you and I do not consider you have discharged that onus. Whilst I accept you were at the time a heavy user of cannabis, that of itself, or even in combination of with the other matters relied on by Mr Allen, does not persuade me to the requisite standard that the cultivation was not for purposes related to trafficking. The evidence must be looked at as a whole, including the matters relied on by Ms Farrell. Accordingly, the maximum penalty in relation to charge two is one of 15 years’ imprisonment. That said, I accept the submission of Mr Allen that neither can I be satisfied to the criminal standard your cultivation of the cannabis plants was for the purpose of trafficking.
95 I accept you relapsed into heroin use in recent years, after a period of abstinence, as a result of a number of stressors in your life and your relationship with Ms Clark, herself a drug user. I accept also that at the time of these offences you were addicted to drugs, including cannabis and heroin. I make this finding on the basis of what you told Ms Ferrari, that at the time you offended you were using cannabis and heroin on a daily basis. Your criminal history relating to illicit drugs and that which was found at your house, including the syringe and a small quantity of heroin in the master bedroom, are strongly suggestive of your addiction to drugs.
96 In R v Nagy[20] McGarvie J stated -
The law does not preclude a court in sentencing this applicant from regarding it as an important factor that he and his de facto wife were heroin addicts and that the crimes were committed with a view to obtaining heroin and money to enable their addiction to be satisfied. Such a factor has been regarded as important in the determination of a person’s criminality … The regard that is to be paid to this factor depends on the circumstances but there is no legal restriction on the extent of the allowance which can be made for it in determining a sentence.
[20] [1992] 1 VR 637, 640
97 Further, as the Court of Appeal stated in Lacey –
In the present circumstances, there was a strong case for the appellant’s drug addiction to be considered in sentencing. Relevant matters to be taken into account were that the appellant’s drug taking had started when he was still only a child, that he had become addicted at a young age, that his long criminal history was drug-related, that part of the drugs he purchased were for his own personal use and that of his partner, that the charges against him arose out of street level operations and that there was no evidence of enrichment. Moreover, the appellant’s history, as recited in the psychologist’s report, indicates that his use of heroin may no longer be one of choice, but rather compulsion and as a result of addiction. [21]
[21] Ibid at [17]
98 I find your offending was linked to your drug addiction. In the circumstances of your case, particularly your history of institutionalisation in your teenage years and early exposure to illicit drug use, I will take that addiction into account in mitigation of your moral culpability.
99 I am satisfied on the balance of probabilities the drugs relevant to charge three were not possessed for the purpose of trafficking. Accordingly, the maximum penalty applicable to the charge is one of 20 penalty units or one-year imprisonment.
100 You indicated your intention to plead guilty at a committal mention on 18 September 2019. It is accepted by the prosecution you gave that indication at the earliest stage possible. Your pleas of guilty are of significant utilitarian benefit, particularly because of the COVID-19 pandemic and its impact on Court lists. Your pleas have saved the Court and the community the time and expense of a criminal trial. You have spared the need for witnesses having to give evidence at trial.
101 This consideration was recently affirmed in Worboyes v The Queen[22] where the Court stated that –
… all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.[23]
[22] [2021] VSCA 169
[23] Ibid [39]
102 I accept also that your pleas of guilty are an indicator of your remorse. They are also an indicator of your acceptance of responsibility for your criminal conduct.
103 Your remorse is also evidenced in the reference provided by your mother and in your discussions with Ms Ferrari. When assessed you acknowledged your actions were wrong, expressed remorse for your offending and the impact it has had on your daughter and your future.
104 I also take into account the fact that you have been on remand at a time where because of the pandemic, a number of restrictions have been in force within the prison system. These include increased lock-downs and a restriction on your ability to enjoy personal visits from family and friends.
105 Character references from your mother and your daughter, Holly, were tendered on your behalf. Your mother states you have spoken to your parents at length about your offending and have demonstrated true remorse for your conduct. She also confirmed the impact of your brother’s death in 2007 upon you. Your daughter confirmed she is very close to you and that her mental health and education have suffered since your incarceration. She stated that you have always been there for her and you spent much time together before you were remanded.
106 I have also had regard to a report, exhibit D4, from the Marngoneet Correctional Centre confirming your completion of a drug and alcohol program. You scored highly in respect of each of the rating categories. The drug assay results tendered on your behalf were all negative and I have also had regard to the many other courses you have completed whilst on remand. You are on a methadone program. Your certificates and results are part of Exh. D5. You have made good use of your time in custody despite your physical and mental difficulties.
107 Mr Allen submitted your prospects of rehabilitation as reasonable. He relied on your insight into your offending and its repercussions, the support of your family and the motivation arising from your desire to care for your daughter. He also points to the positive steps you have taken on remand. I accept each of those factors are relevant to my assessment of your prospects. I also have regard to the fact that your last prior conviction was in 2011. However, by your own admissions to Ms Ferrari, you relapsed long before the matters with which you are charged. Ms Ferrari concluded you present a moderate risk of reoffending. The risks can be reduced through appropriate treatment including psychological intervention and the use of psychotropic medication. Ms Ferrari considers there is limited availability for the psychological treatment you require within the prison environment. I appreciate the difficulty this presents for you but until such treatment is received by you, I consider your prospects are guarded.
108 A defendant’s physical ill-health may be a relevant factor in sentencing if it will make imprisonment a greater burden for him than for a prisoner not suffering such ill-health. I accept that because of your poor physical health you are unable to engage in work within the prison and your ability to participate in recreational and social activities is also reduced. These matters increase the burden of your imprisonment and will operate to mitigate the sentence to be imposed.
109 Whilst it may be that your depressive symptoms at the time Ms Ferrari assessed you were severe, I consider the reference to mild depression in
Dr Cairns’ report, which noted that you were assessed by a psychiatrist in June 2019, and for which you are receiving medication with regular psychiatric nurse reviews, best describes the state of your depression generally during your incarceration.
110 I do not accept I should prefer the opinion of Ms Ferrari to that of Dr Cairns. Ms Ferrari provided a report based on a single assessment on
17 September 2020, some 19 months after you were remanded in custody. The depression, anxiety, stress scale, is a self-report questionnaire, based on your symptoms in the preceding week. Ms Ferrari reported you required immediate treatment to prevent further decompensation. Despite your plea hearing having extended up to 12 May 2021, I have not been informed of any treatment or decompensation since her report was written. Accordingly, I am not satisfied on the balance of probabilities that Verdins limb 6 applies. I do, however accept that the other Verdins considerations relied on by Mr Allen apply and there will be some moderation of the need for general deterrence and specific deterrence on account of your mental health issues. There will also be some moderation in the sentence on the basis that the burden of your imprisonment will be greater because of your mental health difficulties than it would be for a prisoner not suffering such issues.
111 I also accept that the distress caused to you by reason of you not being able to assist your daughter with her difficulties is a matter that makes your experience of imprisonment more burdensome. To the extent this impacts on your mental state it is, in my opinion, already taken into account in the moderation of sentence by reason of the Verdin’s considerations. However, I accept your concern for your daughter will provide you with added motivation to rehabilitate and refrain from committing further offences. You told
Ms Ferrari your daughter was your world and that you are motivated to reform for her sake.
112 It is clear on the evidence before me the forfeiture of you property will have a significant punitive and deterrent effect upon you. As I have already mentioned, you had an interest in the property amounting to $338,000. You are devastated at the loss of your property. It is a significant loss. It is unlikely, given your age and poor health, you will ever again have the opportunity to own your own home. Accordingly, I must give due weight to the forfeiture of your home in determining a just and proportionate sentence.
113 The issue of parity in sentence with Ms Clark was faintly pressed by your counsel. I do not consider it applies in this case. In respect to the heroin found at your premises, Ms Clark faced an altogether different charge with a significantly different maximum penalty. I was also not told anything about her circumstances including whether she has a relevant criminal record.
114 Despite the applicability of Verdins and the moderation of general and specific deterrence, they are still relevant sentencing considerations.
115 You have a large number of convictions for drug offending, particularly drug trafficking. Although they are dated, I consider they are nevertheless relevant to considerations of specific deterrence and rehabilitation.
116 Your efforts at rehabilitation in custody also moderates the need for specific deterrence. However, I keep in mind that your efforts, including abstinence from drug use, have occurred in a controlled environment. As stated,
Ms Ferrari considers you to be a moderate risk of re-offending without proper treatment.
117 The sentence to be imposed must deter not only you from further offending, but also others who are minded to offend in the same or similar manner. You and others must understand that if you behave in this way you will be punished, often with lengthy gaol sentences and, where it applies, forfeiture of property.
118 The sentence to be imposed must also manifest the denunciation by the court of the conduct in which you engaged. Drug trafficking in particular has significant corrosive effects on society and must be condemned and appropriately punished.
119 In determining the appropriate sentence, I have also had regard to considerations of just punishment, proportionality, community protection, and totality.
Sentence
120 On charge one, trafficking in diacetylmorphine (heroin) in a quantity that was not less than the commercial quantity applicable to that drug of dependence – you are convicted and sentenced to a term of imprisonment of 5 years and 3 months.
121 Charge two, cultivating a narcotic plant, you are convicted and sentenced to three months’ imprisonment.
122 Charge three possessing drugs of dependence, you are convicted and sentenced to one-month imprisonment.
123 Charge one is the base sentence. I direct that one month of the sentence imposed on charge two be served cumulatively on the base sentence.
124 This makes a total effective sentence of 5 years and 4 months’ imprisonment. I direct that you serve a minimum period of imprisonment of 3 years and 4 months before becoming eligible for parole. I consider this to be the minimum period that justice requires you to serve in all the circumstances of your case.
125 Pursuant to s 18 of the Sentencing Act, I reckon the period of imprisonment already served for these offences is 906 days not including today.
126 Had it not been for your pleas of guilty Mr King, the sentence I would otherwise have imposed is one of 6 years and 4 months with a non-parole period of 4 years and 2 months.
127 I will make the disposal order that has been sought and the forfeiture order.
128 MS FARRELL: Your Honour - - -
129 MR ALLEN: Your Honour, just - - -
130 HIS HONOUR: Sorry.
131 MS FARRELL: Your Honour, the forfeiture order for the money is no longer sought, it was forfeited in the civil proceedings.
132 HIS HONOUR: I see, thank you.
133 MS FARRELL: There is a DNA order.
134 HIS HONOUR: I do not need to - sorry?
135 MS FARRELL: Sorry, there is a DNA order but the order for the money is no longer sought because it was forfeited in the civil proceedings.
136 HIS HONOUR: Thank you. So, therefore the orders sought are the disposal of the items that are listed in the schedule to that order and the s464ZF order.
137 MS FARRELL: Yes, Your Honour.
138 HIS HONOUR: Mr Allen?
139 MR ALLEN: Yes, there is no objection to that.
140 HIS HONOUR: I will make those orders and I will explain to you, Mr King that I am ordering that an intimate sample be taken from you, is that by way of saliva sample?
141 MS FARRELL: I believe so, Your Honour, yes.
142 HIS HONOUR: And that if you refuse to give a saliva sample, reasonable force may be taken to obtain that sample, Mr King. Are there any other matters to which I need to attend?
143 MS FARRELL: No, Your Honour.
144 MR ALLEN: No, Your Honour, as the Court pleases.
145 HIS HONOUR: Thank you. May I express my gratitude to both members of counsel for the assistance you have each provided in this difficult matter. Thank you, please adjourn the court.
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