Director of Public Prosecutions v Leonidas
[2017] VCC 613
•18 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-16-01935
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK LEONIDAS |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat | |
DATE OF PLEA HEARING: | 26 April and 12 May 2017 | |
DATE OF SENTENCE: | 18 May 2017 | |
CASE MAY BE CITED AS: | DPP v Leonidas | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 613 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v Tsiaris [1996] 1 VR 398; Pearce v R (1998) 194 CLR 610; R v Langdon (2004) 11 VR 18; Boulton & Ors v R (2014) 46 VR 308; Gul v R [2016] VSCA 82; Hutchinson v R (2015) 71 MVR 8; DPP v Mak [2014] VCC 1939; DPP v Xie [2013] VCC 543; DPP v Thanh Nguyen [2013] VCC 579; Commonwealth Director of Public Prosecutions v Le [2015] VCC 541
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Ms R. Shann | Galbally O’Bryan |
HER HONOUR:
1 Patrick Leonidas, you have pleaded guilty to one charge of attempting to traffic in a drug of dependence with a maximum penalty applicable of 15 years’ imprisonment, one charge of importing Tier 1 products without approval with a maximum penalty of five years’ imprisonment or 1000 penalty units or both, and one charge of possession of a drug of dependence with a maximum penalty of five penalty units, referable to a small quantity of Cannabis-L.
2 These crimes arise out of events which occurred between 1 January 2015 and 15 June 2016 (that date referrable to Charge 3). Charge 1 occurred over approximately 15 months. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened, in some detail, by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient, for present purposes, to simply say the facts in this case, in my opinion, are most serious.
3 I turn to a brief summary of your offending.
4 During the period of your offending you were living at a rural property in Parwan with your wife and three children.
5 You leased Post Office Box 137 in Reservoir, using your name, your mother’s address and your phone number. Your mobile phone number at the time was 0420 214 905. You were working as an Uber driver during the relevant period of this offending, although I was told by your counsel that that work actually commenced late 2015.
6 I turn to Charges 1 and 2 on the indictment.
7 In 2014 you decided to manufacture methylamphetamine with the intention of selling it. You used your mobile phone to conduct research on the internet regarding how to manufacture methylamphetamine, and you downloaded documents and manuals which contained information regarding the chemical structure of methylamphetamine, laboratory equipment required to make it, tests for amphetamine and methamphetamine, and information regarding common cutting agents and how to manufacture methylamphetamine.
8 You used the information you obtained from your online research to purchase laboratory equipment materials and chemicals, and set up a laboratory capable of producing methylamphetamine.
9 On 21 August 2014 (prior to the charge dates) and by way of background, you arranged for your brother, George Leonidas, to open a second post office box, Number 169, in Melton. That box was used solely by you and was opened to facilitate the importation of ephedrine.
10 On 26 November 2015, you purchased two 500 ml bottles of hypophosphorous acid, which is a prescribed precursor chemical. In order to purchase the precursors legally, the supplier must obtain information from the customer, providing proof of identity and also set up an account through which the customer pays, and obtain an “end-user declaration” containing prescribed particulars.
11 You completed that declaration but purported to be your father, Constantinos Leonidas and you used your father’s driver’s licence and his trading name to complete the declaration.
12 You stated in the declaration that the purchase of the acid was for decolourising plastics. You gave a delivery address of your home at Parwan. You included your contact phone number. You also gave details of the driver’s licence identification (your father’s licence number) and you declared the acid would not be used in the manufacture of illicit drugs or chemical weapons.
13 Your intention was to use the acid in the manufacture of methylamphetamine.
14 In November and December 2015, you contacted an unidentified person in India who was selling illicit drugs through a website, then later communicated through online messaging applications. You entered into an agreement with that person to purchase ephedrine. That person would send you a price and details of a fictitious name and address to complete a Western Union money transfer to India.
15 Once the person received the money they would confirm, via online messaging, the money had been received, and the ephedrine would be sent.
16 Between 18 July 2014 and 26 November 2015 you sent $6842 through Western Union to the unidentified person in India.
17 On 11 April 2016, an express mail service parcel with a tracking number arrived at Sydney from India, addressed to Steven Willian, Post Office Box 169, Melton, being the post office box leased by George Leonidas in 2014. The sender was listed as Bernard Victor, a contact number given, but no declaration as to the contents affixed to the parcel.
18 Upon examination, the parcel was found to contain a white-coloured dry-cleaning bag labelled with a New Delhi label and contact number. In the bag were five garments and concealed within the hems and stitched into the ornate embroidery were 118 small clear bags containing a white crystallised substance with a total weight of 508.5 grams.
19
Analysis of the samples obtained by ABF officers provided a purity of 81.9 per cent of ephedrine for 85 bags and a purity of 81.6 per cent of ephedrine for
33 bags, establishing a weight of 415.9 grams of ephedrine.
20 Ephedrine is a prohibited import and you did not have permission to import it during the relevant period.
21 On 15 June 2016, police and members of the ABF attended your home. You were arrested, your mobile phone seized and your property searched.
22 A number of items located and seized were set out within paragraph 20 of Exhibit A. One of the items was a small amount of cannabis (referable to Charge 3) located on the front veranda.
23 On the property at the rear of the house was a shed locked with a padlock. Police accessed the shed and observed what appeared to be a clandestine laboratory. A search was conducted of the property and a number of items seized and photographs taken.
24 During the execution of the search warrant, police conducted a field interview with you. You were then taken to Bacchus Marsh police station and interviewed. In both you made full admissions to the charges.
25 In addition there was analysis of your mobile phone which, in brief, contained details of contact by you with a person in India, evidence of Western Union money transfers to India and data regarding website information regarding how to manufacture methylamphetamine.
26 You have pleaded guilty to these three charges and you are entitled to have that fact taken into account in your favour, and I do so.
27
Briefly, by way of chronology, the offending period was (in total) between
1 January 2015 and 15 June 2016. There was a filing hearing, 25 July 2016, and then a committal mention on 6 October 2016. This matter resolved to pleas of guilty at a further committal mention on 3 November 2016 and proceeded by way of straight hand-up brief to the County Court.
28 The prosecution accepts, as do I, that your pleas were entered at the earliest opportunity. The entering of your pleas has spared the community the time and cost of a trial and the need for witnesses to attend to give evidence upon your trial. As I have said, I accept you intimated early your intention to plead guilty, and also that you made admissions to it when first spoken to by police, and were cooperative with the investigation.
29 In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending.
30 You do not have a prior criminal history and nor is there anything subsequent or pending alleged. You therefore come to the court as a person of otherwise good character.
31 Ms Shann, who appeared on your behalf, prepared a written outline of submissions, which she addressed during the course of your plea hearing.
32 From the chronology provided by Ms Shann, you are 31 years of age at sentence. In 2003, when you were 17 years of age, you moved to Cyprus returning to Australia in 2006, at which time you entered a monastery.
33 In 2007 you returned to Cyprus, completed national service and married your wife.
34 On 19 January 2009, a daughter, now 8 years of age, was born. You were then 22 years of age. On 4 June 2010, your son, now 6 years of age was born. In 2010, you returned to Australia to seek work.
35 In 2011, following a serious injury at work, you moved to the Parwan address.
36 On 22 August 2011, another son, now 5, was born.
37 In 2014 you were declared bankrupt and at that time began considering manufacturing drugs as a way to extricate you from your financial problems.
38 The last transfer of money sent by you to India was on 26 November 2015. I discussed this with Ms Shann during the course of the plea hearing. There were a number of other days when you transferred money to India prior to that date, involving various amounts of money.
39 In late 2015, you instructed you began working as an Uber driver, later clarified during the plea as from December 2015.
40 Ms Shann referred to you voluntarily desisting from attempting to manufacture drugs prior to being caught by police, although I note as recently as 26 November 2015, you transferred money to India for the purpose of purchasing acid to assist in the manufacture.
41 Ms Shann referred to your admissions to the police in the field and record of interview and, as I have said, I accept that was so, i.e. you made admissions.
42 Ms Shann submitted you had expressed remorse and shame to those around you for your offending and I shall later refer to a number of references tendered on your behalf, also a report from Mr Newton, and that you did express some remorse for it prior to police involvement.
43
Ms Shann submitted your earlier life had been marred by unhappiness, isolation and anxiety, culminating in a work-related injury in 2011. I discussed with
Ms Shann that you had also been, despite that injury, able to engage in employment over a significant period of time subsequently, albeit with some difficulty with physical labour.
44 You acknowledged your reason for this offending was to extricate yourself from financial difficulties and to support your family. That was the primary motivation for your offending.
45 Ms Shann submitted, based on the report of Mr Newton to which I shall shortly refer, your anxiety at the time impaired your judgement and ability to fully consider the ramifications of what you were attempting to do, and in making that submission, she relied upon R v Verdins & Ors[1].
[1] (2007) 16 VR 269
46
Ms Shann, in describing your "attempt", referred to your lack of chemistry background and that your plan to make methylamphetamine had not included accessing the key ingredient of iodine. Whilst that may be so, there were in my opinion, a number of significant steps undertaken by you relevant to the commission of Charge 1, referrable to your plea of guilty to attempt and I discussed in some length with Ms Shann those activities. I do not accept
Ms Shann’s description of your actions as "just over the line for attempt". She did ultimately concede a number of "things" had been undertaken by you relevant to the "attempt".
47 There were numerous opportunities when you had the opportunity to "back out" or desist from this criminal activity, however, chose to proceed.
48 In court to support you during your plea hearings were a number of members of your family and friends and, in addition, a number of references were before me attesting to your otherwise good character and offering you support.
49 Ms Shann submitted that leading up to your decision to become involved in this offending you had very few friends, had been isolated at school and previously been bullied. Your actions should be seen, she urged, through a prism of your then anxiety and pressure due to your financial commitments and religious expectations.
50 Ms Shann submitted you did not have the social interaction necessary to articulate the problems you were having at that time. She submitted you otherwise had a very strong work ethic and conceded that despite the injury you sustained in 2011, you had however been able to work, albeit with gaps in employment due to difficulties as I have said performing some physical labour.
51 I was told your employment since that injury included six months working at an abattoir, then with trucks in northern New South Wales for approximately eight months, working seven days a week at that time.
52 Following that, you stayed with an aunt in June 2013 and for two months were then unemployed. You returned to the Parwan address in July/August 2013, and were without work for twelve months, although were receiving Centrelink benefits of $1600 a fortnight for the family.
53 You also obtained work in June 2014 as a boilermaker, and working approximately 38 hours a week for three months. At the end of 2015 you said you began working with Uber.
54 I turn to your financial situation at the time of this offending. As I discussed with Ms Shann, you did receive money shortly prior to the commencement of offending in Charge 1, when in late 2014, "around Christmas 2014", you sub-let 600 acres of your own rental property at Parwan, and received a payment of $10,000 approximately two weeks prior to the commencement of the offending. This information was not made known to Mr Newton until recently and I note, not from any discussion with you. You also received, in early 2016, another $10,000 pertaining to that sub-lease.
55 I spent some time discussing this with Ms Shann, in part, when ascertaining and determining whether or not principles in Verdins were applicable, specifically you said you felt pressure to provide for your family (thus increasing your anxiety, Ms Shann submitted). You clearly had access to those additional funds at the time your offending occurred.
56 I turn to the report of Mr Patrick Newton, Clinical and Forensic Psychologist, dated 27 February 2017. He saw you on two occasions in February 2017. Initially, it appeared from his report he did not have a copy of your field interviews or record of interview (see paragraph 5), although he clarified this in his recent evidence before me saying he had seen and read them, rather he had omitted to make reference to that material and its contents in the report, and I note the contents were not otherwise referred to within that report.
57 Further details were provided in his report regarding your background and history. He described your father as being a harsh disciplinarian, with that treatment continuing into your teens. You had now “forgiven and forgotten all of that”.
58 You described your family as intensely religious and deeply devoted to the Orthodox faith. You described being now on good terms with your parents, although some tension remained regarding religion and morality.
59 Your parents divorced when you were 17 and you, not surprisingly, found that distressing.
60 You commenced school at King Lake West Primary School and stayed there until you were 8. You had language and social skill difficulties. You then moved to Sydney with your parents, staying there till you were 12, attending a Catholic college from Grades 2 to 5. In Melbourne you also attended a Catholic school. You described having been teased and bullied, as I have said earlier, through your primary education.
61 You completed Year 11 before returning to Cyprus.
62 In Cyprus you studied welding and steel fabrication before returning to Australia when you were 20. You then spent about nine months in a monastery, although ultimately did not pursue that vocation.
63 You described that for approximately a year after that you experimented with illicit drugs, prior to 2007.
64 Following your return to Australia you worked as a trailer maker until you suffered that serious work injury in 2011.
65 You married your wife in Cyprus and came to Australia in 2007 and there are, as I have said before, three children of the marriage. You expressed a firm commitment to your wife and children.
66 Turning to your mental health, you reported several instances of mental instability in your adult life. It would seem no treatment was sought/obtained by you until very recently. The first was in the context of religious disagreements between yourself and your parents and that there was a further "bout" of instability when you left the Orthodox ministry when you were 20 years of age and for a time after that you engaged in illicit drug use to manage your moods.
67 You described significant depression between 2012 and 2013 as a result of that work injury. Your most recent emotional "upheaval" was a result of this offending and being charged.
68 Turning to your substance use over that twelve month period, you described abusing a wide range of substances, including amphetamines, ceasing drug use when you returned to Cyprus in 2007.
69 Regarding the background to your offending, you said it was motivated by a desire to obtain funds to extricate yourself from your financial problems.
70 Mr Newton concluded you had significantly elevated anxiety at both consultations with him, and that you had experienced anxiety for many years. Mr Newton described you as having a generalised anxiety disorder, currently of moderate intensity.
71 Mr Newton referred to you likely “suffering elevated anxiety” at the time of your offending, although conceded (significantly) there was no indication your anxiety was sufficiently severe to obscure your intention to commit the offending. However, he concluded it was likely your anxiety would have impaired your ability to concentrate and reflect on your situation with calm deliberation. Further, Mr Newton stated your anxiety continued to exert a detrimental effect on your judgement and decision-making.
72 Mr Newton also referred to your ongoing feelings of depression and pessimism, that is since being charged.
73 Regarding your personality, Mr Newton referred to you feeling a deep sense of alienation from mainstream society, leading to bouts of social isolation and difficulties adjusting to mainstream society.
74 Turning to his opinion, your anxiety had its roots in problematic early experiences, leaving you vulnerable to suffering high levels of anxiety in response to stressors, and that your anxiety was prone to persist, even when any given stressor was resolved.
75 Your anxiety, he said, was sufficiently intense to meet the criteria for a moderate generalised anxiety disorder.
76 While your anxiety would not have obscured your intent to commit the offending, he said it would have affected your ability to think clearly about your conduct and make decisions with appropriate attention to their implications.
77 You also suffered with symptoms of depression and had poor self-esteem, with prominent features of schizotypal personality. Your intelligence was estimated to fall in the average range.
78 Mr Newton urged you participate in treatment to address your anxiety and depressive symptoms. He said your mental state could deteriorate if sentenced to a term of imprisonment.
79 It is incumbent upon me to carefully assess the material relied upon when determining the issue of the applicability or otherwise of the Verdins principles. In the decision of Zander[2], Dodds-Streeton JA referred to the need for scrutiny and assessment when considering the relationship between a "mental" disorder and the offending. Similar sentiments have been expressed in recent authorities. Most recently, in Binse v The Queen[3] the court referred to a rigorous examination being required.
[2] [2009] VSCA 10
[3] [2016] VSCA 143
80 In Johnston v The Queen[4], the appellant had been assessed as suffering major depression and generalised anxiety disorder (see paragraphs 13-16), although I note an overlay of drug use in that case. Severity of any mental disorder is also a relevant consideration.
[4] [2013] VSCA 362
81 I am concerned by Mr Newton’s lack of analysis of what you, yourself, told police in your record of interview regarding this offending due to your need to make money. There were repeated payments of money to India by you over an extended period of time where you collected various items, e.g. chemical and equipment, relevant to this attempt.
82 Amongst other matters, including Mr Newton's recent evidence before me, there is concern regarding any link between Verdins and your offending. The more compelling motive for your offending was a desire to make money over and above what you could obtain through legitimate employment and from subleasing of property. Your offending involved a number of acts including purchase of items, research and so on. I note Mr Newton says your anxiety would not have obscured your intent to commit the offending, at best affected your ability to think clearly about your conduct (see paragraph 39(4)). You acted, in my opinion, with purpose and clarity.
83 Your decision-making, in my opinion, did involve sufficient clarity to satisfy the "attempt". Mr Newton’s conclusion that you would be expected to have had problems attending to detail or concentrating or thinking through the likely consequences of your actions, in my opinion, does not sit comfortably with the activities engaged in by you relevant to the charge, in particular Charges 1 and 2.
84 Mr Newton gave evidence before me on 12 May 2017. He confirmed your generalised anxiety disorder was moderate and not at a severe level.
85
The background information (as distinct from your offending) available to
Mr Newton, he said, came from your self-report and you did not report any prior treatment for any mental health issues.
86 He confirmed his opinion you were ‘likely’ not thinking ‘clearly’ and ‘calmly’. He conceded he could not definitively say this impacted upon your decision making. He said, "No higher than that" (i.e. likely).
87 Specifically referring to paragraph 33 of his report, he said there was not a causal link between your disorder and your offending, rather it provided a context in which you would weigh the likely consequences of your actions.
88 Mr Newton had been told by you of financial difficulties, however did not have any information regarding your income, including the $10,000 received from sub-letting part of your leased property shortly before your offending began. He conceded there could be aspects relevant to you and your offending of which he was not aware.
89 Ms Shann submitted that Verdins principles 1, 3 and 4 were enlivened by the report of Mr Newton by reference to R v O’Neill[5].
[5] [2015] VSCA 325
90 The prosecution submitted that neither the report of Mr Newton nor his evidence before me enlivened Verdins principles 1, 3 and 4, and that based on all the material before me, the realistic causal connection between your moderate generalised anxiety disorder and this offending had not been made out. Ms Parkes, for the prosecution, however conceded relevant to Verdins principles 5 and 6, that your time in custody would be more burdensome than for someone without your mental health issues.
91 As I say, evidence was also given by Mr Newton on this. That is referrable to Verdins 5 and 6 in addition to that within his report at paragraph 40. He said should you continue taking your recently prescribed medication, that would assist you in custody. Mr Newton anticipated limited behaviour therapy available to you in prison. If you received this treatment your prospects of rehabilitation were "moderately good". Your anxiety was amenable to cognitive therapy and medication.
92 In my opinion, Verdins principles 1, 3 and 4 are not enlivened. I can and do, however, take into account the matters raised by Mr Newton consistent with general sentencing principles. I do accept the applicability of Verdins principles 5 and 6 and your sentence reflects those considerations.
93 A number of other documents were before me during your plea hearing, including correspondence from Graeme Miller dated 19 April 2017, confirming you attended with him for two psychological appointments on 11 and 19 April 2017, following a referral from your treating doctor. You were currently prescribed and taking the antidepressant, Lexapro.
94 There were also a number of references before me.
95 A reference from Robert Antoniou dated 20 February 2017. He has known you for approximately 24 years. He is a close friend of yours and described you as a person who was honest, generous, hospitable, respectful and generally of good character. You had been involved in many charitable events over the years, and lived according to Christian values.
96 Mr Antoniou was aware, in recent years, of your financial problems and referred, also, to the work injury you sustained.
97 You had continually stated to him you were remorseful for this offending. The author referred to you stating you had no intention of proceeding with your initial action, although that would seem to be inconsistent with the repeated actions by you in furtherance of this offending. Since your offending, Mr Antoniou had seen many positive changes in your life, including seeking medical treatment, starting a new job and forming new relationships.
98 There was also a reference from your cousin, Maria Harrison, dated 9 March 2017. Your family depended upon you. She had also discussed the consequences of your offending and the impact of it on your family and on you.
99 Your offending was out of character. Ms Harrison regarded you as trustworthy, honest and respectful, and the family would remain supportive of you. You were repentant for your offending and had sought support through the church. You had also put into place strategies and business plans for a new business enterprise.
100 There was a reference from Reverend Priestmonk Polyviou of the Genuine Orthodox Church dated 15 March 2017. He has known you from the time you left school. In 2017 he hired you as an employee in an air-conditioning and refrigeration business he was then operating. He described you as trustworthy and dependable and as a good parent and husband. Your offending was out of character. I was somewhat confused by his statement you had made several attempts to the supplier of ephedrine in India to stop sending you illegal goods which did not seem to be part of the material before me. Nevertheless, I just note that.
101 There was a reference from Petros Barbagiannis dated 24 March 2017. He has known you for approximately 15 years, having met you at a local parish in Sydney. He described your involvement with the church, and in particular in 2004, travelling to Greece to learn about monastic life. You later moved to Cyprus, where the previous reference it seems, had employed you, although you remained an active member of the Genuine Orthodox Church. You met your wife and then with her, came to Melbourne. He described you as always honest, loving and caring, warm and welcoming. This offending was out of character. You had shown remorse for your offending.
102 There was a reference from Reverend Priestmonk Kosmas of the Holy Archdiocese of Genuine Orthodox Christians of Australia dated 27 March 2017. He has known you for over five years as your family's spiritual mentor. He described you as having a gentle character, calm, amiable, sociable, cooperative, honest and likeable. You were a man of excellent character and dignified conduct. You were remorseful for this offending. He described you as an exceptional family man, caring for your wife and three young children.
103 There was a reference from William Earle dated 7 April 2017. Your offending was out of character and from his observations, you were a person of good character and were remorseful and distressed for your offending. He had known you since you were 14. You had support within the Australian-Cypriot community. He made reference to your current work as an Uber driver, and your wife in part-time employment. Both you and your wife had strong Christian beliefs which made your offending, he said, more perplexing. I was concerned by his reference to you not knowing what you were going to do with this illegal material, seeing it was pretty clear from the totality of the material that you were planning to make money and had people test the product. You were remorseful for your offending and distressed by your actions and the consequences of it.
104 There was a reference from Coral Thomas, your aunt, dated 25 April 2017. The family was in disbelief regarding this offending, as it was out of character. They were disappointed by your offending behaviour. You were raised in a law-abiding, close-knit family, which upheld strong Christian values. She described you as a family-orientated man. Over the years, you had been able to acquire invaluable practical trade skills. She and you had a close bond and she described you as a very caring man. You were determined to make positive changes in your life. You had, at times, assisted her over the years in her cleaning business. You had also assisted with the care of your paternal grandmother who was battling cancer in assisting Ms Thomas in that role.
105 There was also a reference from Louise Upton, managing director of Create Team, dated 25 February 2017. Her company had been engaged by you to develop the Slog Jobs Business Strategy documentation since October. Her company worked closely with you on a daily basis. It was an organisation which worked with you to launch your business. You were very driven to see Slog Jobs succeed and the Create Team hoped to be part of that journey worldwide.
106 Correspondence from Chaudhry Nasir, chief operating officer at Tecjaunt. That company rendered software development services to you for Slog Jobs and they had engaged with you since May 2016.
107 Turning to Ms Shann’s sentencing submissions, she submitted that regarding Charge 2, that the importation relied upon by the prosecution formed part of the "attempt" that is, was relied upon as one aspect in proving Charge 1. I am conscious of the need to not "double punish" you and discussed this at some length with counsel at the further plea hearing, in particular on 12 May 2017.
108 Ms Shann initially submitted that when sentencing you on Charge 2, you could be convicted and released without any further sentence being imposed. She amended that submission following a brief adjournment and discussion with the prosecutor at the most recent hearing. Should I accede to that initial submission, Ms Shann then submitted when sentencing for your offending in Charge 1, I could consider whether or not a community correction order, consistent with the principles stated in Boulton & Ors[6] should be imposed.
[6](2014) 46 VR 308
109 In support of that submission, Ms Shann relied upon your early plea of guilty, your remorse including desisting from this offending prior to police detection, the support from the family and the treatment you had commenced to undertake, amongst other matters referred to in her submissions. Ms Shann submitted your prospects for rehabilitation were "excellent", in my opinion they are "good" providing you continue medication and seek treatment. I note Mr Newton’s description of your rehabilitation as "moderately good" if you obtain appropriate treatment.
110 I am mindful of course of the decision in Boulton and the subsequent pronouncements of the Court of Appeal relevant to those principles. A community correction order has both a punitive and rehabilitative aspect to it, and in Boulton the courts were urged to "rethink the conventional wisdom about whether prison is really the only option".
111 Community correction orders have been referred to in a number of cases since, including DPP v Maxfield[7], Alam v The Queen[8], Marocchini v The Queen[9] and Gul v The Queen[10] (of course, I am mindful of the different offending in those cases from yours).
[7] [2015] VSCA 95
[8] [2015] VSCA 48
[9] [2015] VSCA 29
[10] [2016] VSCA 2
112 I did not however understand Boulton to remove the requirement that a sentencing judge must take into account all of s5 Sentencing Act, nor did I understand Boulton to mean that sentencing principles as stated by the Court of Appeal and other cases relevant to your offending now amounted to nought. Nor did I understand Boulton to remove the instinctive synthesis when sentencing.
113 I did not understand Boulton to remove the need for me to be mindful of the maximum penalty considered appropriate for this offence, as set by Parliament.
114 Further, as Court of Appeal Priest JA observed in Hutchinson v The Queen[11]:
“It should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
[11] [2015] VSCA 115
115 Ms Parkes submitted at the initial plea hearing, in brief, the prosecution position was that an immediate term of imprisonment was required for your offending as it involved financial reward and occurred over a significant period of time (approximately fifteen to sixteen months). Further, your offending involved a number of acts constituting the "attempt", which she described as a "concerted effort" by you.
116 Ms Parkes urged that general deterrence, denunciation and protection of the community were all relevant sentencing considerations and referred me to four decisions of this court relevant to similar offending: DPP v Mak[12], DPP v Xie[13], DPP v Thanh Nguyen[14] and Commonwealth Director of Public Prosecutions v Le[15].
[12] [2014] VCC 1939
[13] [2013] VCC 543
[14] [2013] VCC 579
[15] [2015] VCC 541
117 It is very difficult, as I discussed with counsel, comparing cases factually. Importantly also when considering those authorities, there are included within those authorities "standalone" offences of importing Tier 1 goods. Your case is somewhat different as Charge 2 is relied upon by the prosecution as part of the "attempt" in Charge 1. This raises real issues regarding double punishment. As I discussed with counsel, the way you have been presented to this court (that is on the indictment before me) means ultimately that when sentencing, the penalty I impose relevant to Charge 2 will of necessity appear and at face value be very lenient.
118 Ms Parkes also referred to the sentencing snapshot provided by Ms Shann regarding trafficking in a non-commercial quantity of drugs. Again, I note your charge is "attempt".
119 When sentencing you, I take into account s5 Sentencing Act 1991 and also s16 Crimes Act 1958 (Cth). I have taken into account when sentencing for both State and Commonwealth all matters known and relevant to you. I am of course well aware this is your first time in custody and that a term of imprisonment must always be the last resort of the court.
120 Following my discussion with counsel referrable to this "double punishment" issue, Ms Parkes obtained further instructions from the Office of Public Prosecutions on 12 May. The prosecution submission was then that a term of imprisonment was appropriate relevant to Charge 1 and that I could appropriately sentence you relevant to Charge 2 to a s19B Crimes Act (Cth) Bond without conviction as it is called.
121 Regarding s19B(1) Crimes Act (Cth) 1914, there is a two-step process involved when considering the appropriateness or otherwise of such a disposition.
122 Given the prosecution concession that Charge 2 offending forms part of that in Charge 1, the most relevant consideration seems to me to be s.19B(1)(iii), that is extenuating circumstances relating to the principle of double punishment.
123 The second stage, however, is a consideration (being mindful of s16A principles and matters therein specified) whether "it is inexpedient to inflict any punishment other than a nominal period". In so determining this, I am not suggesting the offending in Charge 2 is not serious, it is. Such a disposition that I am now being presented with is "rare". Rather, the way the indictment is drafted leads to this conclusion (and I also refer to the discussion regarding s.19B Bond in the Federal Sentencing in Victoria paper (as at 31 January 2017) prepared by the Commonwealth Director of Public Prosecutions, in particular paragraphs 181 and 192). I have also been assisted in my analysis by DPP (Cth) v Li[16].
[16] [2000] VSCA 76
124 Ms Shann submitted the latter then was an appropriate way to deal with Charge 2, but maintained her submission regarding Charge 1 that it should be dealt with by a community correction order.
125 As well as matters personal to you to which I have referred, including your prospects of rehabilitation which I find to be good, I also take into account such matters as deterrence, especially general deterrence, which is important in a case such as this, relevant not only to the State offending, but also Commonwealth.
126 In my opinion, there is also the need for specific deterrence when sentencing you, in particular, given the significant period of time over which this offending occurred and the number of acts involved within the attempt. I again note your lack of prior criminal history and any subsequent offending and that you have also lost your employment as an Uber driver as a result of the recent media publicity regarding your offending.
127 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your reoffending.
128 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
129 In my opinion, to impose on Charge 1 a Community Correction Order would not appropriately reflect all relevant sentencing considerations, including the gravity of your offending and all matters personal to you and in mitigation of sentence.
130 I sentence you as follows.
131 On Charge 1 (State offence), you are convicted and sentenced to 2 years and 6 months’ imprisonment.
132 On Charge 2 (Commonwealth offence), you are discharged without proceeding to conviction. Now, I just want that clarified by counsel. This follows on - I just interpose - from our discussion of the double punishment.
133 COUNSEL: Yes, Your Honour.
134 HER HONOUR: Charge 3, you are convicted and fined $200. That is the possess the cannabis.
135 So the total effective sentence is 2 years and 6 months' imprisonment and I direct that you serve a period of 13 months before you are eligible for parole.
136 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, again being mindful as I am of the double punishment of Charges 1 and 2, I would have sentenced you to a term of imprisonment of 4 years, with a non-parole period of 2 years and 6 months.
137 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 6 days in custody by way of pre-sentence detention up to and including yesterday, 17 May and I direct that that be entered into the records of the court.
138 The prosecution made application for a disposal order and this was consented to by counsel on your behalf and I make the order in the terms sought.
139 The prosecution also made application for a forensic sample pursuant to s464ZF Crimes Act 1958. This was also consented to by counsel on your behalf. I make the order in the terms sought. It will be for a saliva sample and I do that on the basis of the seriousness of your offending and I must advise you the authorities may use or may use reasonable force in order to obtain that sample.
140 A couple of things I want to clarify. PSD, correct?
141 COUNSEL: Yes, Your Honour.
142 HER HONOUR: All right. Now, is it sufficiently clear to both of you the sentence on Charge 1 and Charge 2?
143 MS PARKES: Yes.
144 HER HONOUR: Charge 2 looks and appears and is very lenient, but it is in the context of Charge 1 which we discussed at some length and the issue of double punishment.
145 MS THIESS: Yes, Your Honour.
146 HER HONOUR: So is that clear to you both?
147 COUNSEL: Yes, Your Honour.
148 HER HONOUR: All right. Excellent. Are there any other orders?
149 MS PARKES: Your Honour asked Ms Jackson to query the offending period.
150 HER HONOUR: Did I ? Yes.
151 MS PARKES: It does include Charge 3. So that is the cannabis charge.
152 HER HONOUR: Yes, but it starts 1 January of what year?
153 MS PARKES: Twenty fifteen.
154 HER HONOUR: Yes. It was just a typo.
155 MS PARKES: And the Charge 3 - so the offending period takes into account all three charges.
156 HER HONOUR: Yes, I follow that.
157 MS PARKES: Yes.
158 HER HONOUR: Now, is there anything else that needs clarification at this stage?
159 MS PARKES: No other matters, Your Honour.
160 MS THIESS: No, Your Honour.
161 HER HONOUR: PSD? It is all there?
162 MS PARKES: Yes.
163 HER HONOUR: All right. Thank you. Can you remove Mr Leonidas? Thank you. Thank you both.
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