Director of Public Prosecutions v Lisboa-Pinto

[2023] VCC 1961

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00162

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIGEL LISBOA-PINTO

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JUDGE:	HER HONOUR HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 & 6 October 2023
DATE OF SENTENCE:	30 October 2023
CASE MAY BE CITED AS:	DPP v Lisboa-Pinto
MEDIUM NEUTRAL CITATION:	[2023] VCC 1961

REASONS FOR SENTENCE
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Subject:

Catchwords:              34 year old offender – pleas of guilty to two rolled up charges of trafficking and possession respectively on one day only -  variety of drugs and presence of 4 mobile phones, deal bags, scales and $21,000 cash held to be indicative of extent and sophistication of offending - also four Summary Charges of possessing schedule 4 poisons, possessing a controlled weapon, dealing with an unauthorised explosive (fireworks), and dealing with property suspected of being the proceeds of crime – lack of transparency concerning offender’s financial position after losing his employment but repaying two mortgage loans leading up to offending – court satisfied that offending undertaken in part to satisfy offender’s drug habit but also in part for profit– very limited prior criminal history – early pleas of guilty of utilitarian value and showing some remorse – had served 112 days in custody for the first time before being granted bail – personal circumstances relating to recurring depression – good work history – post offending voluntary engagement in psychological counselling and narcotics anonymous and impressive application to employment whilst on bail – good prospects of rehabilitation, but not such to overwhelm denunciation and general deterrence.

Legislation Cited:      

Cases Cited:R v Verdins (2007) 16 VR 269, R v Falzon [2018] HCA 29; Quach v The Queen [2021] VSCA 164, Symons v The Queen [2021] VSCA 276, Worbyes v The Queen [2021] VSCA 169.

Sentence:                  Total Effective Sentence is 24 months’ imprisonment with a non-parole period of 8 months, also, fines of $100, $200, $100.
s6AAA: 3 years imprisonment with a NPP of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M White	Instructed by the Solicitor for Public Prosecutions
For the Accused	Ms E McKinnon	Instructed by Furstenberg Law

HER HONOUR:

1Nigel Lisboa-Pinto, you have pleaded guilty to one rolled up charge of trafficking in a drug of dependence which carries a maximum penalty of 15 years’ imprisonment, and one rolled up charge of possessing a drug of dependence which carries a maximum penalty of five years’ imprisonment or 400 penalty units or both.  In addition, you have consented to four Summary Charges being uplifted to the County Court and have pleaded guilty to those charges.  They are charges of possessing a Schedule 4 poison which carries a maximum penalty of 10 penalty units; possessing a controlled weapon without excuse which carries a maximum penalty of 120 penalty units or 12 months’ imprisonment; dealing with unauthorised explosives (fireworks) which carries a maximum penalty of 100 penalty units; and dealing with property suspected of being the proceeds of crime which carries a maximum penalty of two year’s imprisonment.

2The circumstances of your offending are summarised in the updated summary of prosecution opening on a plea of guilty dated 3 October 2023.[1]  On 20 August 2021 police were patrolling the car park of a hotel which was well known to police for illicit drug activity.  Police observed your Toyota Hilux vehicle parked at the car park and saw it later leave with you as the sole occupant.  Police intercepted you and, when you were asked to produce your licence, you opened your wallet and police observed a large quantity of cash. They subsequently searched your vehicle pursuant to the provisions of the Drugs, Poisons and Controlled Substances Act 1981. In the canopy of your vehicle they located 73.4 grams of methylamphetamine, 24.9 grams of cocaine, 51.8 grams of 3,4-Methylenedioxy-N-methylamphetamine, 269.8 grams of 1,4-Butanediol, 194.2 grams of cannabis (a further 941.1 grams having subsequently been found in the garage of your home when a search warrant was executed), 1288 milligrams of lysergic acid diethylamide and 8 Alprazolam tablets. Your possession of these drugs of dependence forms the basis of Charge 1, the rolled up charge of trafficking.

[1]Exhibit “A”

3Also located in the canopy of your vehicle were 8 grams of amphetamine, 28 phentermine tablets, 62 diazepam tablets and 7 grams of ketamine.  Later, at a search of your home, police also located 646.2 grams of psilocybin.  Your possession of these five different drugs of dependence comprises the rolled up charge, Charge 2 possession of a drug of dependence.

4Police also located 8 tramadol tablets, 69 tadalafil tablets and 30 pregabalin tablets in the canopy of your vehicle.  The possession of these three different forms of prescription medication comprises Summary Charge 24.

5Further, police located a hunting knife in the canopy of your vehicle, which forms the basis of Summary Charge 25, possession of a controlled weapon without excuse.  In addition, inside the canopy were assorted fireworks, and further fireworks were located in the garage of your home when it was searched by police.  The possession of all of these fireworks comprises Summary Charge 27, dealing with an unauthorised explosive, namely fireworks, without approval of the appropriate authority.

6Also located in the canopy of your vehicle was $20,925 cash, which forms the basis of Summary Charge 29, dealing with property suspected of being the proceeds of crime.  By way of completeness it should be noted that police also located four mobile phones, numerous empty snap lock bags and a set of digital scales in the canopy of your vehicle.

7You were arrested by police.  During the record of interview you largely made “no comment” answers to police questions, which is your legal entitlement. However, you admitted that you were the sole user of your vehicle and the owner of the items which police had located in the canopy.  When asked if any of the drugs located at your family home belonged to your wife you stated, “No”.

8The matter resolved at an early stage on 10 February 2022 at a committal mention at which you indicated your intention to plead guilty.  You had been remanded in custody from the date of your arrest on 20 August 2021 until you made a successful application for bail on 10 December 2021.

9You are presently aged 36 years, almost 37 years, having been born in December 1986.  You come before the court with a history of one only prior court appearance.  This was at Ringwood Magistrates’ Court on 24 August 2017 for one charge of cultivating a narcotic plant, which comprised three cannabis plants.  Without conviction, the matter was adjourned to 23 August 2018 upon you undertaking to be of good behaviour and you were ordered to pay $200 to the court fund.

10In a plea on your behalf by Ms McKinnon, the court was told that you are the middle of three children born to your parents, and had a stable upbringing.  You completed both primary and secondary school at Ferntree Gully.  You were not particularly academically gifted, but have had a good work history since leaving school. You initially worked for some four years in a factory producing dental fillings, Southern Dental Industries in Bayswater.  Subsequently, from May 2009 to October 2012, you completed your apprenticeship as a boiler maker with two different employers, Steel PRO Engineering and ControlFab Pty Ltd.

11In October 2012 you and your then long-term partner, Sheree (whom you subsequently married in 2015), moved to Western Australia. There, you were employed initially at Karratha Aluminium Welding and ARC Group Enterprises as a boilermaker and, subsequently, with Monadelphous, working on one of Rio Tinto’s sites at Dampier as a boilermaker maintaining all fixed plant machinery.  You then returned to Melbourne due to Sheree’s mother becoming terminally ill.  This was in 2014, and you obtained employment as a machine operator/labourer with Toxfree and, subsequently, as a boilermaker/fabricator work with Prevon from 2014 to 2016 and, subsequently, Commercial Systems Australia.  The latter work involved fabricating street, furniture and shelters, but your counsel told the Court that, in or about March 2020 you lost that employment allegedly due to layoffs necessitated by the Covid 19 pandemic.

12Your counsel stated that, whilst employed with Commercial Systems Australia, you had been camping with some fellow employees and had been introduced to methylamphetamine, which you enjoyed, and you quickly became a regular user and ultimately dependent upon it.  As previously mentioned, you had married Sheree in 2015 and, in 2017, your daughter, Zahlia, was born.  Your increasing illicit drug use and infidelity resulted in the breakdown of the relationship and your wife asked you to leave the marital home in mid-2021.  You counsel stated that the loss of your employment, increasing dependence upon methylamphetamine and the loss of your marriage were the context in which you began to traffick in drugs in order to support your use of illicit drugs.

13I experienced considerable difficulty extracting a coherent chronology from your counsel. During the plea hearing on 3 October 2023, the court was told that, whilst you and Sheree were still working in Western Australia, you purchased what was to become the matrimonial home at 20 Weyburn Road, Boronia, with a deposit of $70,000 having come from Sheree, who had received an inheritance following her father’s death in 2002.  In 2015, Sheree’s mother died and, in 2017, her mother’s house was sold, which resulted in an inheritance to her of $270,000.  Part of Sheree’s inheritance was used to pay the $80,000 deposit for a house and land purchased as an investment property for some $480,000 by the two of you in 2018, albeit that the house was not completed until January 2020. The address of this property is 103/2 Indigo Street, Bonshaw near Ballarat

14Your counsel stated that part of the stressors facing you leading up to the offending were the mortgage repayments on both the matrimonial home and the investment property, each of which were in excess of $2,000 per month.  She stated that the investment property was tenanted for a time and the rental covered the mortgage repayment on that property, but as interest rates have risen in more recent times there has been a shortfall of some $369 per fortnight which has had to be found, in addition to ongoing repayments on the former matrimonial home of $2,330 per month.  Apparently, Sheree was earning only some $70,000 employed in her sister’s funeral director business, although that has now increased to $80,000.

15Tendered on your behalf was a report of a psychological assessment conducted of you by Mr Jeffrey Cummins date 26 April 2023.[2]  Mr Cummins noted a strained relationship between you and your parents which allegedly resulted from you having been sexually abused by a male cousin when you were aged approximately seven to nine years. This is said to have involved both oral and anal penetration. Allegedly your mother walked into the room where this sexual abuse was occurring on one occasion, but, as the perpetrator was her sister’s son, you felt that the abuse had been “swept under the carpet” or never dealt with and you have felt aggrieved by this.  Further, in or about 2009 or 2010, after having commenced your apprenticeship as a boilermaker and steel fabricator, your best friend was killed whilst on combat duties in Afghanistan and this caused you to become acutely depressed and withdraw from your apprenticeship for a time, albeit that you continued it with a new employer.

[2]Exhibit “1”

16Mr Cummins noted that, when he interviewed you, you stated that you had been intermittently feeling depressed over many years dating back to when you were sexually abused at age nine. You reported sometimes experiencing flashbacks and feeling angry, frustrated, resentful, hurt and abandoned by your parents.  He formed the view that you have been suffering from a Major Depressive Disorder of at least moderate severity which had been recurrent in type from around the age of nine.  He went on to state that he formed the view that:

“Against the background of suffering from symptoms of a Major Depressive Disorder, he became progressively “psychologically lost” as a result of becoming dependent on methylamphetamine and then losing further stability in his life through being retrenched from work shortly after the onset of the Covid 19 lockdowns in mid-2020.  In my opinion he became more depressed and more “psychologically lost” after his wife evicted him from the marital home around June/July 2021 and thereafter he became more dependent on methamphetamine – which ultimately culminated in his arrest in August 2021”.

17He stated that he assessed you as a traumatised person and that you had, at times, suffered symptoms of a stress and trauma-related disorder in the form of PTSD/an Adjustment Disorder, although he thought the “best fit” mental health diagnosis was a Major Depressive Disorder, which had been recurrent in type and associated with features of anxiety and traumatisation.  He noted that, whilst in custody at Ravenhall Correctional Centre, you had made contact with Ms Amy Livingston, a psychologist employed by The GEO Group Australia. Since being released on bail, you had continued to engage in telehealth counselling with her, as well as attending Narcotics Anonymous meetings.  He considered that you required further mental health treatment as you were at a relatively early stage of achieving an adequate resolution concerning your childhood sexual abuse and being abandoned by your parents.  There has been no corroboration by your mother of such sexual abuse, even though she and you your father have supported you throughout these criminal proceedings, but, given that the alleged perpetrator was a relative, it has been acknowledged by the prosecution that it is a delicate subject.

18Subsequent to Mr Cummins assessment, on 4 October 2023, a mental health assessment of you by a senior psychiatric nurse, Hannah Child, was made as part of an assessment for suitability for a Community Correction Order.[3] Ms Child noted that you had been linked with a counsellor via GEO Services to whom you spoke by telephone for 90 minutes each fortnight and this had been very helpful to you and your mood had improved significantly and you currently denied any current symptoms of depression or anxiety.  Ms Child, expressed the opinion that you did not require any additional mental health treatment and noted that you planned to continue your counselling with Ms Amy Livingstone. 

[3]Part of Exhibit “B”

19A very brief report from Ms Livingstone of the GEO Group Australia Pty Ltd dated 26 April 2023[4] noted that you had first contacted that service on 6 September 2021 whilst in custody and had undertaken an “Ice and Me” and “Alcohol and Me” program, as well as voluntarily contacting the Bridge Centre on two occasions to initiate psychological support and had attended a total of 18 clinical sessions via telephone.  Your counsel stated that, since that time, you had continued those sessions by telephone every fortnight and had now attended some 28 sessions of counselling.

[4]Exhibit “5”

20Unfortunately, the very confined nature of Ms Livingstone’s report did not reveal whether she has been counselling you in relation to consequences of alleged sexual abuse as well as substance abuse. Your counsel did not rely upon the report of Mr Cummins as enlivening principles 1 to 4 in R v Verdins[5], but submitted that your having been diagnosed with a Major Depressive Disorder which was recurrent and associated with features of anxiety and traumatisation enlivened principles 5 and 6 of Verdins.  As correctly pointed out by the prosecutor, Mr White, there was no support for the proposition that your mental health was likely to worsen in custody, however, I do accept that, generally speaking, if one does suffer from a mental health condition it makes serving a term of imprisonment more burdensome than for a person who does not suffer such condition.  It would appear that you did find your first time in custody prior to being given bail very onerous and, for that reason, sought mental health treatment from Ms Amy Livingstone, to which I have previously referred.

[5](2007) 16 VR 269

21Subsequent to the conclusion of the plea hearing, a brochure and contract[6] and bank statements relating to the mortgage loan[7] on the investment property were forwarded to the court. The bank statements suggest that the loan in relation to the investment property was taken out on 28 April 2020 for an initial amount of $112,752.40.  This was subsequent to when you claimed to have lost your employment in March 2020. Further advances on the mortgage loan were made throughout the course of that year, namely, $50,747.60 on 24 July, $97,023.50 on 7 August, $69,302.50 on 19 August and $27,721 on 10 December.  This meant that, by 10 December 2020, the ultimate mortgage owed to the Commonwealth Bank in relation to the investment property was $363,836.65.  Moreover, it would appear that, that construction of the actual house on the land was not completed until on or about 26 October 2020.[8] Thus, it would not have been possible to have tenants residing there paying rent to cover the mortgage repayments prior to that date. Given that your counsel had made the submission of financial hardship by way of background to your offending and, also, that you may suffer extra-curial punishment by losing the properties, each of which had been subject to a prohibition order pursuant to the Confiscations Act 1997, the matter was adjourned for further plea in an effort to understand your financial situation.

[6]Exhibit “8”

[7]Exhibit “9”

[8]Exhibit “8”

22At the further plea hearing on 6 October 2023, your counsel, consistent with submissions which had been filed that day, urged the court to be cautious in not taking irrelevant matters into consideration as there was no evidence to show that, on the date you were arrested, you were living beyond your means or had a lavish lifestyle.  I pointed out to your counsel that her submission had been that you had trafficked in illicit drugs in order to supply yourself with such drugs and cover up how much you were using and, in that context, had raised financial hardship which did not seem to be consistent with Exhibit 9, the bank statements relating to the investment home.  In an email to my associate sent shortly before the plea hearing had began on that day,[9] your counsel had withdrawn her earlier submission relying upon extra curial punishment with respect to the potential loss of the former matrimonial home and the investment property.

[9]Marked For Identification “4”

23At the plea hearing on 6 October 2023, your counsel accepted that, in the circumstances, I could not find financial hardship.  She submitted, however, that her instructions now were that, whilst the building of the investment property was being undertaken, mortgage instalments due to the bank were paid from an account in which the balance of your former wife’s inheritance from her mother ($190,000) had been placed.  When I pointed out that this was in conflict with what had been put to the court on 3 October 2023, namely, that you still had money to be able to pay your bills and instalments, your counsel stated that you had spoken with your wife the previous night and indicated that the account containing the balance of your wife’s inheritance had not become the subject of a prohibition order under the Confiscation Act until after you had been arrested.

24The prosecutor, Mr White submitted that the court’s task had been made difficult by the defence providing only partial information to the court.  He urged that it should be easy for defence to provide to the court statements from Account 63791-11791684 which had been referred to as the nominated direct debit account for the investment home loan in a letter from the Commonwealth Bank dated 16 December 2020 (part of Exhibit 9).  He submitted that if, as your counsel claimed, that was an account in which the balance of your wife’s inheritance had been deposited, then there should be evidence available to support that.

25Similarly, Mr White submitted it should be very easy to prove when you actually ceased employment with Commercial Systems Australia, which you had alleged to have been in March 2020 because of the Covid pandemic.  He further noted that what had been put on your behalf was that you had essentially engaged in “subsistence trafficking”, but that did not appear to be consistent with the history given to Mr Cummins as detailed in paragraph 29 of his report.  That history was that, after losing your job,  you “often derived some income from selling drugs and most of that income was directed towards (your) own dependency – which at that time was primarily on methamphetamine.”[10] In all of the circumstances the prosecution maintained its original position as articulated in submissions on 3 October 2023 that denunciation and general deterrence should be the dominant sentencing considerations and a head sentence with a non-parole period was the appropriate sentencing disposition.

[10]Exhibit “1” Page 5

26In the light of the prosecution submissions, even though considerable indulgence had been granted to defence, I deemed it appropriate to give a further opportunity to you to produce any other relevant documents and written submissions upon which you sought to rely by 10 October 2023.  What was produced by that date was a payslip from “Commercial” for the pay period from 22 to 28 May 2020 which is said to reflect when you had been put off work (rather than March 2020 as earlier submitted).[11] The payslip does not note that it is “termination” pay and no further information was provided as to the reasons for the employment coming to an end. In this regard, I note that you had given a history to Mr Cummins that you were introduced to methamphetamine at CSA, which you “then promptly became dependent on”[12]

[11]Exhibit “10”

[12]Exhibit “1”, p. 4, para 28.

27In addition, a residential tenancy agreement pertaining to the investment property was produced.[13]  This was signed by the tenants on 1 February 2021 and by your former wife and yourself on 3 February 2021. It indicates that the first monthly rental payment of $1,825 was due on 4 February 2021.  The defence further submissions on plea dated 10 October 2023 now sought “to clarify” that you did not rely on hardship as a reason of the offending.  Further, on your behalf it was submitted that “a (my emphasis) reason for the offending was in part (my emphasis) to fund his addiction.”[14]

[13]Exhibit “11”

[14]MFI-5.

28At the plea hearing on 3 October 2023 I had been impressed by the written reference from your employer, Mr Kristian Hanley, director of the company by which you have been employed since January 2022 as an installer of garage doors and gates.  In oral evidence that day, Mr Hanley stated that you had told them that you had spent four months’ in prison on remand for these charges. He said that they had watched you very closely and, in the ensuing period, had never observed any behaviour of yours which was of concern to them.  He stated that your skills as a boilermaker shine through and you are now responsible for the more complex installations which they undertake, which often involves using a combination of construction and welding skills which are hard to come by.  He stated that you were dealing with heavy gates and tilt doors which involve fabrication on-site, and following plans and problem solving, as well as managing some challenging customers, particularly those who are “architecturally fussy”.  He stated that you now train their more junior staff on these jobs and it would be difficult for him to find someone with your skill set.  He stated that, if you were to be given a sentence of imprisonment, it would be difficult for the company. Whilst they may manage for some months, if it were to be longer, then he would have to replace you.  He stated that you were extremely aware of what you had done and knew it was wrong.  He indicated that the greatest impact related to your marriage and child and you were clearly embarrassed and ashamed and felt you had let your family and friends down.  He did not recall you saying that you were sorry for any impact on the community.  He recalled your remorse being all around what you had done to your family.  He stated that he had little understanding of how you got involved in this offending. He said it felt to him that you had significantly gone off the rails over a short couple of years and being arrested had been a wakeup call for you.

29There can be no doubt that you have worked hard since being released from custody and the fact that you have continued to be involved in counselling and to attend Narcotics Anonymous is in your favour.  Your prospects of rehabilitation appear to be good.  In the light of this and that the picture initially painted by your counsel appeared to be that you became embroiled in this offending simply to feed your drug habit and cover up the extent of it, I had been considering a disposition by way of a combined sentence of imprisonment and a Community Correction Order, for which you were assessed as being suitable.  However, the picture which has ultimately emerged is, I believe, correctly characterised by the prosecutor as one of you being “other than a subsistence trafficker” and the submissions made on your behalf ultimately acknowledge that your drug habit was a part, but not the sole reason, for your offending.

30The way in which the plea in mitigation on your behalf unfolded with a number of inconsistent propositions being put to the court causes me to conclude that you are an unreliable historian.  Whilst you fall to be sentenced for trafficking and possession of illicit drugs on one day only, namely, 20 August 2021, the date upon which you were arrested, it is important to note that each of the charges is a rolled up charge, involving multiple different drugs.  Moreover, your possession of four mobile phones, scales, snap lock bags and almost $21,000 in cash indicates a degree of organisation and sophistication on your part. 

31The submissions made on your behalf never clarified when it was that you had been introduced to methamphetamine whilst working for Commercial Systems Australia. Obviously, it must have been prior to what is now known to be your last date of employment there on 28 May 2020.  You apparently had begun your employment there in or about December 2016.  Your counsel initially had stated, during the morning of your plea hearing on 3 October 2023, that you had started taking methylamphetamine whilst at Commercial Systems Australia because you were not coping with the pressure of long hours at work. She stated that you were working 12 hour days from Monday to Friday from 6.00am to 6.00pm and half a day on Saturdays. This was a somewhat different proposition from what was later put on your behalf after the luncheon adjournment on that same day: that you’d been introduced to methylamphetamine on a camping trip with work colleagues, enjoyed it and became dependent upon it.

32Your counsel stated that you had not wanted to return to Victoria from Western Australia where you were earning $150,000 (as distinct from $69,000 with CSA), but returned because your wife’s mother was ill. She stated that you felt trapped in Victoria and wanted to be back in Western Australia.  At no stage during the plea hearing was the nature and extent of your methylamphetamine habit at the time of offending made clear.  Nor was your financial situation after you left CSA ever clarified. The submissions on your behalf moved from a claim that you started trafficking to pay for your own usage and cover up the extent of it to an ultimate concession that “a” reason for the offending was “in part” to fund your addiction.[15]  The submission initially made on your behalf at the hearing on 3 October 2023 was that you had money available to you to use for payment of bills and continued to contribute to the family’s financial situation.  However, it was never made clear how this was possible, given that you and your wife were servicing a mortgage on the matrimonial home, as well as a mortgage on the investment property, albeit that for some undefined time from 4 February 2021 the lessees of the investment property were to pay rental of $1,825 per month. I must say that the submission that you had money to pay bills after loosing your employment did not seem to fit well with you acknowledging to Mr Cummins that you were ‘very entrenched in the drug user/dealing scene at the time of (your) arrest’.[16]

[15]Defence Further Submissions on Plea dated 10 October 2023, Marked for Identification “5”

[16]Exhibit “1”, p 8 para 60

33Subsequently, at the hearing on 6 October 2023, it was asserted that the money was available because $190,000 of your wife’s inheritance was invested in a bank account. Yet, at the hearing on 3 October 2023, your counsel had stated that you had money sitting there, but because it was your wife’s, you felt you couldn’t touch it. In any event, that your wife’s inheritance was somehow the source for being able to make the mortgage loan repayments was never backed up by the provision of any evidence.  There has been no provision of bank statements from any account into which any rental monies from the investment property were paid or from which mortgage repayments were made.  In particular, statements from the bank account which was nominated as the account to be debited for repayment of the investment mortgage loan have never been tendered.

34Although I am satisfied that you were a user of illicit drugs, I am not able to be satisfied as to the extent of such usage.  In the light of your history to Mr Cummins and the ultimate concession made by your counsel, the only conclusion the court can reach is that, although the offending was in part related to your illicit drug usage, it was also in part for a profit motive. However, the material before the court does not enable me to be satisfied as to the nature or extent of any profit.

35Whatever the state of your dependence upon methylamphetamine was at the time of your arrest, after you were released on bail following four months’ in custody, you have apparently never again used any illicit drugs. Drug addiction, in itself, will rarely be mitigatory, albeit that it may impact upon the degree of moral culpability and be relevant in relation to prospects of rehabilitation.  In your case, your involvement in trafficking was in part related to being able to service your illicit drug habit, but also in part to enable you to make a profit in circumstances where you had no employment and two mortgages to pay, with your wife earning only $70,000 per annum (and for some indeterminant period of time from 4 February 2021 you and your wife apparently received some rental payments relating to the investment property).  Your moral culpability is above that of a person who was trafficking simply to cover the costs of his own drug habit.

36Illicit drugs have often been described as a scourge on our society.  Drug addiction impacts adversely upon the capacity of a human being to function properly, to work, to be healthy and to enjoy good relations with family, friends and others in the community.  Drug addiction causes addicts to commit crimes to feed their habit.  Those crimes often involve violence and theft of property, and these impact adversely on the victims of such crimes and the community generally.  Trafficking in illicit drugs is an evil trade which feeds the misery of others who are addicted and erodes the well-being of our society in a very substantial way.  It consumes enormous health and rehabilitation resources, policing resources and court resources, and costs the community a great deal in terms of funding imprisonment and community-based dispositions for offenders.

37The primary sentencing objectives must be to denounce this evil trade and emphasis general deterrence.  General deterrence means that, through sentencing you, a message must be sent to those in the community who are minded to engage in drug trafficking that it will not be worth their while and they will be appropriately punished. I note that your compliance with relatively onerous bail conditions involving a curfew and reporting twice per week to police. I have also noted your good work history whilst on bail and engagement with counselling and Narcotics Anonymous. These factors cause me to believe that you have good prospects of rehabilitation. However, this is not a case where I consider your prospects of rehabilitation should overwhelm the primary sentencing objectives of denunciation and general deterrence.  There should be some emphasis upon specific deterrence, but I consider that this is considerably less than would have been the case when you were first arrested.  I accept that you are ashamed of your offending, albeit that you did not demonstrate insight into the detrimental effect that your offending has on the society at large until I articulated that you had not done so and the next day you mentioned it to the assessing officer from the Office of Corrections.[17]

[17]Exhibit “B” Community Corrections Order Assessment Outcome Report date 4 October 2023, p.1.

38You are a person who comes from a good, law abiding family and you have had the benefit of a stable upbringing and tertiary education.  I have read the references tendered on your behalf from friends and family.  I accept that, by nature, you are a decent and hardworking person and you have tried to turn your life around and are devoted to your young daughter.  However, although I consider your prospects of rehabilitation to be good, after anxious consideration, I have determined that the prosecution submission is correct that the gravity of your offending warrants a sentence of last resort by way of a head sentence and non-parole period, particularly bearing in mind that both Charges 1 and 2 are rolled up charges. The variety of different drugs and the presence of 4 mobile phones, scales and deal bags and almost $21,000 has never been explained by you and is not consistent with you being simply a hapless addict, trafficking because you were indebted. These are commonly found indicators of a trafficking business and, as a matter of law, are entitled to be treated as indicators of the extent and sophistication of your trafficking.[18]  Had police not intercepted you, there was a significant quantity of illicit drugs that had the potential to find their way into the community. For this reason, protection of the community is also a relevant sentencing factor.

[18]R v Falzon [2018] HCA 29; Quach v The Queen [2021] VSCA 164, Symons v The Queen [2021] VSCA 276.

39I consider that your prospects of rehabilitation should be recognised by setting a low non-parole period, albeit that the granting of parole is a matter for the Parole Board, not myself.  It is to be hoped that you will be given parole at the earliest opportunity and will be able to continue your rehabilitation in the community, including your work with your employer.

40In arriving at the sentence which I intend to impose I have taken into account your early pleas of guilty which have enhanced utilitarian value as, at the time that they were indicated in February 2022 this court was still struggling with very congested trial lists caused by the restrictions imposed during the Covid 19 pandemic.[19]  I acknowledge that the pleas are also accompanied by some remorse.

[19]Worbyes v The Queen [2021] VSCA 169.

41Further, I take into account that your four months’ in custody on remand was more onerous because of restrictions still being imposed in prisons due to Covid 19. I note that you underwent two separate periods of isolation which must have been very challenging for your first time in custody, particularly someone with your mental health issues. Indeed, your distress caused you to access counselling services from the GEO Group via Ms Livingstone for the first time in your life.  It is to your credit that you have continued with those counselling services and, also, during your time in custody completed alcohol and other drug screening and assessment and two programs relating to substance abuse. 

42I have previously referred to the application of Principle 5 in Verdins case. I have no doubt that your will miss your young daughter whilst in custody and will be anxious about her and the financial wellbeing of your former wife and daughter whom you had been financially assisting from your salary whilst on bail.

43In sentencing you on Charges 1 and 2, I am obliged to impose a sentence which adequately reflects the overall gravity of your offending taking into account that they are rolled up charges.  However, I am mindful that although the drugs which comprise the charge of possession (Charge 2) are different from those comprising the trafficking charge (Charge 1), both charges are part of the same enterprise. Accordingly, totality is an important consideration.  I am also mindful that, given that I have expressed my satisfaction beyond reasonable doubt that the trafficking charge was committed in part to make a profit (albeit that I am unable to quantify same), this court must be careful not to impose double punishment when sentencing for the summary charge of dealing with property suspected of being proceeds of crime, namely, $20,925 cash, albeit that it must be recognised as a discrete offence.

44I was not addressed by your counsel as to why you possessed a controlled weapon, a hunting knife (Summary Charge 25) or the unauthorised explosives, fireworks, (Summary Charge 27). Nor was I addressed upon the substances which form the subject of Summary Charge 24, possession of Schedule 4 poisons. However, in my view, these summary charges may be appropriately dealt with by way of a fine.

45On Charge 1, the rolled up charge of trafficking in a drug of dependence, you are convicted and sentenced to be imprisoned for a period of 21 months.

46On Charge 2, the rolled up charge of possessing a drug of dependence, you are convicted and sentenced to be imprisoned for a period of 6 months.

47On Summary Charge 29, dealing with $20,925 cash suspected of being the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of one month.

48I direct that two months of the sentence imposed on Charge 2 and the sentence of one month imposed on Summary Charge 29 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.  The total effective term of your imprisonment is thus 24 months’ imprisonment.  I direct that you serve a period of eight months’ imprisonment before becoming eligible for parole.  I declare a period of pre-sentence detention of 112 days to be time reckoned as already served under the sentence imposed this day.

49Pursuant to s6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty the total effective of sentence imposed on charges 1, 2 and Summary Charge 29 would have been 3 years imprisonment with a non-parole period of 24 months.

50On Summary Charge 24, possessing a Schedule 4 poison, you are convicted and sentenced to pay a fine of $200.

51On Summary Charge 25, possessing a controlled weapon, you are convicted and sentenced to pay a fine of $100.

52On Summary Charge 27, dealing with unauthorised explosives, fireworks, you are convicted and sentenced to pay a fine of $100.

53On Charge 1, I order, pursuant to section 33(1) of the Confiscation Act 1997, that the property referred to in the Schedule of this order be forfeited to the Minister.

54On Charges 1 and 2, I further order pursuant to section 78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred to in the Schedule of the order, and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.