Director of Public Prosecutions v Luzza
[2022] VCC 1992
H
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01025
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMINIC LUZZA |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2022, 21 May 2022, 3 October 2022 | |
DATE OF SENTENCE: | 25 October 2022 | |
CASE MAY BE CITED AS: | DPP v Luzza | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1992 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentencing
Catchwords: Trafficking – Importation of Commercial Quantity and marketable quantity of Border Controlled Drugs – Analogues – eutylone – MAPA – fluorodeschloroketamine
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Pidoto & O'dea (2006) 14 VR 269; Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; Worboyes v The Queen [2021] VSCA 169; DPP v Tiba [2021] VSC 515; Nguyen v The Queen (2011) 31 VR 673; DPP (Cth) v Maxwell (2013) 228 A Crim R 218; Dawid v DPP [2013] VSCA 64;
Sentence: Convicted and sentenced to a total effective sentence of 7 years imprisonment with a non-parole period of 4 years.
Section 6AAA declaration: Conviction and total effective sentence of 10 years imprisonment with a non-parole period of 7 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Sonnet, Ms S. Holmes | Office of Public Prosecutions |
| For the Accused | Mr Gumbleton, Mr James KC | One Group Legal |
HER HONOUR:
1Dominic Luzza, you have pleaded guilty to seven offences related to your dealings with illicit drugs. These offences are:
(i)Trafficking in a drug of dependence;
(ii)Attempting to possess a drug of dependence;
(iii)Importing a marketable quantity of a border controlled drug;
(iv)Knowingly dealing with the proceeds of crime;
(v)Importing a commercial quantity of a border controlled drug;
(vi)Trafficking in a drug of dependence in a commercial quantity;
(vii)Possession of a drug of dependence.
2
These charges relate to overlapping offending committed between
27 December 2018 and 11 September 2019. During that time you trafficked drugs of dependence, imported them, knowingly dealt with money which was the proceeds of crime, and possessed and attempted to possess various drugs of dependence. You involved others in your offending, and were active in pursuit of these offences.
Summary of Offending
3A detailed summary of your offending was provided to me at the plea.[1] I have read and will take into account all the matters set out in that document, but the summary of your offending which I will now give is a précis of those facts.
[1]Summary of Prosecution Opening (amended) dated 4 February 2022
4At the time of the offending, you were 26 and 27 years old. You were initially living in an apartment in the Docklands, and then in Caroline Springs, with your partner Ms Bailey. You were a patched member of the Comancheros OMCG, holding the position of Victorian Treasurer.
5During the period of the police investigation lawful telephone intercepts were placed on four different mobile phone numbers you used. These numbers were subscribed in names other than yours. From May 2019 an optical surveillance device was placed in the kitchen area of your apartment in Docklands. This device showed that, in addition to using the intercepted numbers, you made calls using encrypted applications so that the content was not captured, save for when the device in your apartment did so.
6You also used a Blackberry handset installed with an additional level of encryption technology. You used chat applications such as WhatsApp and Wickr, emails, and the multiple mobile phone numbers connected in names other than yours, to communicate with others for the purposes of these offences.
Charges 1, 4 and 7
7
Charge 1 is that at Docklands and Caroline Springs in Victoria between the
27th day of December 2018 and the 11th day of September 2019 you trafficked in drugs of dependence, namely, chloro-N, N-dimethylcathinone, which is an analogue of 2-methylamino-propiophenone (which is known as methcathinone) and 4‑methylmethcathinone (4-MMC and also CDMC), 1,4-Butanediol, and fluorodeschloroketamine, an analogue of ketamine (I will refer to fluorodeschloroketamine as FDK).
8The following matters were set out by the prosecution relating to Charge 1:
(a) On 27 December 2018 during a covert search of your apartment investigators noted a plastic bag containing 118 grams of a white rock substance which was believed to be a drug of dependence, and also bags of a cutting agent.
(b) On 15 and 23 April 2019 intercepted calls showed you arranging the purchase of levamisole, which is a substance used as a cutting agent for the preparation of cocaine for sale. You purchased 500 grams of that substance on 23 April 2019.
(c)
On 11 May 2019, you and Ms Bailey were recorded arguing at home.
Ms Bailey said to you '… did I choose this life, no, this life isn't for me … hey Dom, do I sell drugs or do you? Would it be in this house if it wasn't for you? cos I'm no junkie …'.
(d) On 15 May 2019 the optical device in your kitchen recorded you returning home with a bag which contained multiple bags of a white powder. Using scales you divided a larger bag of white powder into smaller amounts. You also counted an unknown sum of money. Later that evening you used scales, bowls and a blender to mix a substantial quantity of a white powder. The nature of this powder is unknown, but the prosecution allege that it was a drug of dependence which you were preparing for sale.
(e) On 16 May 2019 the optical device captured you counting an unknown amount of money, and then weighing out an amount of white powder from another bag.
(f) On 20 May 2019 you removed a large amount of money from the rear of a wall clock, and put it in your pocket;
(g) On 21 May 2019 investigators carried out a covert search of your home, finding a cutting agent, a large quantity of $50 notes concealed in the wall clock, a Blackberry mobile phone in the bedroom and a TNT postal bag addressed to Ms Bailey, which contained a rock type substance. A sample of that rock type substance was taken and found upon testing to be chloro‑N, N-dimethylcathinone, which is one of the drugs of dependence being the subject of Charge 1.
(h)
On 22 May 2019 the device captured you taking a bag of an unknown rock type substance from your pocket and putting it in a hiding place in a tin of dog food. You took another bag from that tin, and told Ms Bailey 'I've got to take this downstairs', before you left and then returned a few minutes later at
2.42 am.
(i) Between 9.15 and 9.30 pm on 28 May 2019 you used scales, a calculator and multiple containers to mix and measure a large quantity of powder in the kitchen.
(j) The next day, 29 May 2019, you were observed removing a bag of white powder from the dog food tin. You removed an amount from that bag, placed it in another bag, and put the larger bag back in the tin. The prosecution allege that this was a drug of dependence, the nature of which is not known.
(k) On 30 May 2019 you had a conversation with a Comanchero associate, Hasan Topal, about matters associated with that group. You also discussed that the authorities could not intercept or monitor a particular type of encrypted telecommunication. Later that day you were observed counting a large sum of money in the kitchen.
(l)
On 2 June 2019 you removed a bag of white powder from the dog food tin, separated out a quantity of that white powder into another bag, and then replaced the first bag into the tin. You then left the apartment with the powder you had put in the second bag. You performed a similar activity on
5 June 2019.
(m) On 17 June 2019 you had a conversation regarding a complaint about something someone had purchased. The extract noted by the prosecution is:
'… someone is complaining about the stuff he got from me … I gave him two to three thousand max worth … I don't know what Anths done to it, whether he's put sugar in it or something …'
That same day you discussed with Ms Bailey the funds for your forthcoming overseas trip. You were observed removing money from a cereal box.
(n) On 28 June 2019 you offered your associate Carbone the opportunity to look after the pick up and drop off of drugs whilst you were away. You were aware that Mr Carbone owed others a large sum of money.
(o) Whilst you and Ms Bailey were overseas, investigators searched your home on 2 July 2019. They found 31 grams of chloro-N, N-dimethylcathinone in the dog food tin, cutting agent in a tub in the kitchen, and 78 grams of 1,4‑Butanediol in a glass jar in the kitchen. They also saw $10,000 cash which was wrapped in plastic and concealed in a cereal box.
(p)
On 25 July 2019, you were back from your trip to Europe. You were recorded discussing with an associate that you would travel to Europe to meet
Hasan Topal, and that he wanted you to bring “ten thousand dollars each”. Later that day you and Ms Bailey argued about you going overseas again so soon. You said:
'… I have to go overseas again … I have to organise the supply, now I need to organise the packaging … it won't be more than one or two days otherwise I will be suspected of bringing stuff back ...'
You travelled to Europe again on 26 July 2019, returning on 31 July 2019. Whilst you were in Europe you met with Mr Topal.
(q) On 1 August 2019 Mr Carbone delivered a bag containing an unknown drug of dependence to you. You told him “… hurry up I've got someone waiting downstairs …”. After Carbone left, you put two large bags of white powder on the kitchen bench, then mixed that powder with another substance, before putting the mixed substance in plastic bags. You then left with one of the bags and returned a few minutes later without it. The prosecution allege that you trafficked an unknown drug of dependence on that occasion.
(r) On 3 August 2019 you removed a small amount of white powder from a bag which had been concealed in the wall clock. You took the bag with the small amount of powder and left the apartment. The prosecution case is that you were trafficking an unknown drug of dependence.
(s) A further covert search was conducted on 6 August 2019. Investigators found a total of 61 grams of fluorodeschloroketamine, across two bags, concealed in the wall clock. Later that day the optical device recorded Ms Bailey retrieving and counting a large amount of cash taken from the cereal box.
(t) On 12 August 2019 you removed a bag of white powder from the wall clock and left the apartment.
(u) On 17 August 2019 you returned home at around 2 am, in possession of a large amount of cash.
(v) On 22 August 2019 you came home with a yellow postal box. You put it on the kitchen bench, removed a large bag of white powder from it, and then using scales mixed most of that substance with another unknown white powder. Ms Bailey assisted you as you put the mixed substance in a large bag. You were also observed to count a large amount of cash, then leave with the large box of mixed white powder.
(w) On 23 August 2019 you and Ms Bailey discussed moving home. You were conscious of the need not to rent somewhere expensive in view of the level of income she received from her legitimate job. Later that day you mixed and weighed bags of white powder, and then left the apartment with a bag of powder before returning five minutes later. The prosecution allege you trafficked that powder.
(x) Early in the morning of 24 August 2019 you removed a bag of white powder and a large sum of money from the wall clock.
(y) On 28 August 2019 you mixed and weighed white powders, then left the apartment for a short time. The prosecution allege that you trafficked that powder.
9On 29 August 2019 you and Ms Bailey moved from the Docklands apartment to an address in Caroline Springs. You were arrested on 11 September 2019, and your home searched on that day. You had in your possession an iPhone, a Blackberry phone, $19,600 stored in a box, and $2,566.15 in your wallet.
10At your home police located numerous items, the most relevant of which were:
(i)
assorted steroids – which were later analysed as 12.9 grams of testosterone, 17.6 grams of nandrolone, 7.7 grams of boldenone,
0.6 grams of methandienone, and 6.6 grams of drostanolone (all that relates to Charge 7);
(ii)press sealed bags containing approximately 20 green tablets – which were later analysed as 24.2 grams of oxymetholone (also related to Charge 7);
(iii)the dog food tin with the false bottom, which was empty;
(iv)a set of Digital Scales;
(v)12 press sealed plastic bags each containing 28 grams of crystal substance located in the wall clock – this was later analysed as fluorodeschloroketamine (relates to Charge 1);
(vi)press sealed bag containing $482.55; and
(vii)press sealed bag containing $7,000 concealed in a cereal box.
11I note the following points in respect to Charge 1:
(a) The charge covers approximately nine months of trafficking, in multiple types of drugs of dependence. The drugs tested and weighed were:
(i)chloro-N, N-dimethlcathinone (which is an analogue of methcathinone and 4-MMC), which is reported as a synthetic stimulant drug, of unknown quantity on 21 May 2019, and 31 grams on 2 July 2019;
(ii)
1,4‑butanediol, which is reported as a common substitute for GHB
– 78 grams on 2 July 2019;
(iii)fluorodeschloroketamine (which is an analogue of ketamine) is reported as a 'designer drug' – there was 61 grams of this seen on 6 August 2019, 12 separate bags with a total weight of 320 grams at 90 per cent purity found on 11 September 2019. Thus, there is a total of 397 grams of that drug the subject of Charge 1. I note that at that time a trafficable quantity of ketamine was 3 grams, and a commercial quantity of that drug (mixed) was 500 grams.
(b) The lengthy summary which I have set out refers also to activities of possession of, mixing and dealing with unknown substances alleged to be drugs of dependence. Those activities provide context for the trafficking of the known substances. They show that particularly from April 2019 you were actively engaged on a regular and frequent basis in accessing, mixing and moving drugs of dependence. Analysis of your Blackberry had multiple conversations on it referring to trafficking of drugs;
(c) Furthermore, the references to giving “two to three thousand max worth” and your dealings with Mr Topal indicate that you were trafficking in more than small quantities. The amounts of cash observed, of known and unknown amounts, also indicate that your offending was reaping significant amounts of money;
(d) You were sourcing drugs through Mr Topal. You were also engaged in the online purchase and importation of drugs, which is the subject of other charges, and hence only relevant to this charge as context, but this is an indicator of your role as the principal;
(e) You were conscious of the need to avoid detection, and used multiple devices, and devices with extra encryption, for this reason;
(f) There is no evidence of any other person directing your trafficking conduct;
(g) You directed Mr Carbone in his participation in your trafficking;
(h) Recorded conversations with your partner indicate her disapproval of your trafficking, but this did not deter you from your offending.
12
Charge 4 is that at Docklands and Caroline Springs in Victoria between
1 May 2019 and 11 September 2019 you dealt with proceeds of crime, namely an unknown sum of cash, whilst knowing it was the proceeds of crime. This charge covers you being in possession of unknown amounts of cash during that time, as observed by the optical surveillance device in your apartment,[2] and, further, being in possession of known amounts as follows:
(a) On 2 July 2019 $10,000 concealed in the wall clock;
(b) On 11 September $19,600 stored in a box, $2,566.15 in your wallet, $7,000 in a cereal box at your home, and $482.55 in a press-seal bag. The total of these amounts is $29,648.70.
[2]See paragraph 8, sub paragraphs d, e, f, g, k, m, u, v, x.
13It was submitted on your behalf that the money the subject of Charge 4 was the product of the trafficking and that you should not be further punished for the possession of the proceeds of that offending. On the plea it was discussed whether this meant that no sentence should be imposed or if the sentence should be wholly concurrent with the trafficking sentence.
14
As I have already noted, the amounts of cash known and unknown in your possession during the trafficking are indicative that you were trafficking at more than a low level. To avoid double punishment I will make the sentence on
Charge 4 wholly concurrent with the sentence on Charge 1.
15Charge 7 relates to your possession, on 11 September 2019, of the drugs of dependence, namely testosterone, nandrolone, oxymetholone, drostanolone, boldenone and methandienone. These were anabolic and steroidal agents in small quantities.
Charge 2
16Charge 2 is a rolled up charge covering four separate instances of attempting to possess a drug of dependence, namely, methyl alpha-acetylphenylacetate (which is an analogue of phenyl-2-propanone). This drug is commonly known as 'MAPA' and I will refer to it as that. Phenyl-2-propane (P2P) and MAPA are used in the clandestine manufacture of methylamphetamine.
17Each parcel had been sent from China. You are not charged with importing or attempting to import these parcels. This charge is put, and I sentence you, on the basis that once the parcels were in Australia you attempted to take possession of them and the drug in that parcel.
18On 19 January 2019 a parcel addressed to 'Peter Papa' at an address in Craigieburn arrived in Australia. You directed a young man named Koray Biricik to collect that parcel, providing him with the relevant information and a handwritten note purporting to be from Peter Papa, authorising Biricik to collect the parcel.
19The prosecution case is that this parcel contained an unknown amount of MAPA. This is part of the charge of attempted possession, as the parcel was collected by Biricik, but there is no evidence that it came into your possession.
20On 1 February 2019 a parcel addressed to Liam Dimech, at an address in Tullamarine, arrived in Australia. It had a declared weight of 50 kilograms. Australia Border Force examined this parcel and seized it. The contents were later examined and found to be MAPA. The weight has not been provided.
21You arranged for another young man, Fawzi El-Cheikh, to collect the parcel, providing him with the relevant details. He and another person, Sasulu, endeavoured to collect the parcel and produced a handwritten note purportedly from Liam Dimech. The name Dimech was connected to a family member of Sasulu, and the phone numbers used to enquire about the package were linked to El-Cheikh.
22
Also, on 1 February 2019 a different parcel arrived in Australia addressed to
Peter Papa at the same Craigieburn address. The total weight of this parcel was 50 kilograms and was declared to contain the same meat preservative.
23ABF examined and seized this consignment. It was tested and found to contain MAPA.
24On 4 February 2019 Biricik attempted to collect this consignment, bringing a handwritten note purporting to be from Peter Papa. On being told that the consignment was being held by the ABF, Biricik left.
25Investigation of your phone following your arrest found images of chats between you and the sender of the parcel, which confirmed that Biricik had a letter of authorisation to collect the parcel. El-Cheikh had provided Biricik with these details, the letter and had directed Biricik to sign for the parcel in the name of “Peter”.
26On 18 July 2019 a parcel arrived in Australia, addressed to Adrian Russo at an address in Essendon North. This packet was seized by ABF and found to contain 1.94 kilograms of MAPA. This consignment was linked to you by its similarity to the other consignments.
27It was submitted on the further hearing of the plea that if I were to find that you arranged for others to collect the parcels that this would amount to sentencing you for the offence of importation of a border controlled drug. I do not accept this submission. The facts upon which I sentence you do not include that you arranged for the importation of the drugs, or that you caused another person to do so. The facts founding this charge relate to your attempts to take possession of the parcels containing MAPA, after they had arrived in Australia, utilising others to carry out the actual collections.
28It is not alleged that you came into possession of these packets, either because the contents were seized, or because it cannot be established that you did so. The total declared weight of the consignments was around 110.5 kilograms. I note that the declared weight appears to have been a little larger than the weight of the content of the final packet. So this figure of 110.5 kilograms is an approximation of the total weight of MAPA that you attempted to possess.
29It was initially submitted on your behalf that this analogue of P2P is a pre-cursor drug and not intended or used for immediate consumption by users. It was submitted that the amount of usable drug which could be achieved from this amount of MAPA was well below the weight of the substance itself. To the extent that this submission traverses the authority of Pidoto and O'dea[3] I do not think it relevant. There is no evidence before me as to the potential profits you could have made from this substance, if it had come into your possession.
[3]R v Pidoto & O’dea (2006) 14 VR 269
30There is no evidence to support the submission initially made on the plea that you were acting as an agent of another person.
31In the authority of Nguyen v The Queen and Phommalysack v The Queen, the Court of Appeal confirmed the following statements regarding the gravity of this type of offending:[4]
[I]t should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attaching to the act of attempted possession itself. A sentencing judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise.
Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.
[4]Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 at [36]; See also Nguyen v The Queen (2011) 31 VR 673, 681-682 [34](12).
32You arranged for the collection of these four packages by others. Your culpability is high, and the amount of drug you sought to possess was substantial. You are, as I have said, being sentenced for attempting to possess these parcels of MAPA, not for importing them, or for attempting to traffic them, and the maximum penalty for this charge is only five years.
Charge 3
33Charge 3 relates to a single importation of a marketable quantity of eutylone (which is an analogue of butylone), a border controlled drug.
34
The parcel arrived in Australia on 27 April 2019. It was addressed to
“Andrew Vasapolous” at an address in Craigieburn. The parcel had been sent from Hong Kong and was declared as containing “packing bag”.
35
The package was examined by Australian Border Force and on testing found to contain 496.8 grams of eutylone. The 'marketable quantity' under the Act is
2 grams, and the commercial quantity is 750 grams.
36Between 26 April and 22 May 2019 you accessed the tracking details of this parcel, online, on multiple occasions. The personal particulars listed for the consignee were consistent with your Australia Post account. You have admitted by your plea that you imported this quantity of eutylone.
37It was noted that the fault element was that you acted recklessly in relation to the prohibition on the importation of eutylone.[5] Under the Criminal Code, a person is reckless with respect to a circumstance if 'he or she is aware of a substantial risk that the circumstance exists or will exist; and having regard to the circumstances known to him or her, it is unjustifiable to take the risk'.[6]
[5]Submissions dated 18 May 2022, [33]
[6]Criminal Code (Cth) s5.4(1)(a) and (b)
38The maximum penalty for this offence is 25 years' imprisonment. The amount of drug you imported was 248 times the marketable quantity threshold. You were the person arranging the importation, and you took steps to avoid detection by the use of a false name and address on the consignment, as you were aware that there was a substantial risk that the substance was a border controlled drug.
39The potential profit you could have made from the sale of this drug is relevant to assessing the gravity of the offending, and to the issue of general deterrence. Whilst there was no evidence specific to this importation, the conversation you had with Mr Carbone about another amount of eutylone, has some bearing on this issue.
40
In September 2019 you discussed selling eutylone for $700 per ounce
(ie 28 grams). Using that as a calculator, you could have earned around $12,000 on the sale of this imported amount of drug.
41I sentence you on the basis discussed on the plea, that is, that the potential earnings from the sale of eutylone are above the low levels seen with drugs such as 1,4‑Butanediol and GBL, but below the very significant amount of money to be made from the sale of drugs such as methylamphetamine and heroin.
Charge 5
42
Charge 5 relates to multiple acts of importation of a commercial quantity of a border controlled drug, fluorodeschloroketamine, which is an analogue of ketamine. The charge encompasses 13 separate importations with a combined weight of
6.3687 kilograms. The commercial quantity of this border controlled drug was
1 kilogram.
43These parcels were linked to you by:
(a) similarities of addresses and details to other parcels;
(b) the use of addresses linked to your sister's partner who was a real estate agent. The prosecution says that you were paying your sister's partner to provide addresses for parcels;
(c) WhatsApp conversations between you and the senders;
(d) internet access by you of tracking numbers; and
(e) images or messages on your phone linked to some of these importations.
44In view of the similarities between these importations and the manner in which parcels were sent to Australia as summarised in respect to Charge 3, I will not set out the details of the parcels which are set out in the Summary of Prosecution Opening, but rather summarise the days and the weights:
(i)12 May 2019 – 488 grams;
(ii)19 July 2019 - 409.8 grams;
(iii)19 July 2019 – 402.8 grams;
(iv)23 August 2019 – 496 grams and another package of 496 grams, and another package of 497.5 grams;
(v)27 August 2019 – 494.7 grams;
(vi)28 August 2019 – 495.4 grams;
(vii)29 August 2019 – 498.3 grams and another parcel of 499.1 grams;
(viii)30 August 2019 – 100.2 grams;
(ix)3 September 2019 – 494.5 grams;
(x)
17 September 2019 – two bags, one of 497.7 grams and one of
498.7 grams, with a total of 996.4 grams.
45On 26 August 2019 you were discussing with the suppliers the bags which had arrived between 23 and 29 August 2019, and on 3 September 2019 (you were using WhatsApp). You asked the suppliers to change the details from 'whitening chemicals' as other consignments with that descriptor had been seized. Later, on 3 and 10 September 2019 you told the suppliers that the packages had been seized and asked them to re-send the product.
46The maximum penalty for this charge is life imprisonment. The offending occurred over the course of approximately 4 months, and covers 13 separate importations. The weight of the drug imported is 6.3 times the commercial quantity threshold for this substance (that is, 1 kilogram).
47Your culpability in respect to this charge is high. You purchased these drugs, and arranged for them to be sent to Australia to false names and addresses which were not obviously associated with you. In a number of instances, you used addresses obtained from your sister's partner. You were in contact with the suppliers using WhatsApp, and when you became aware that the parcels were being seized you arranged with the sellers to change the details put on the packages, to avoid this occurring again.
48There is no evidence that you were working for another person in arranging these importations.
49I do not accept that the ease of ordering these drugs online reduces your culpability. You took steps to avoid detection, were clearly aware that the drugs were being seized and you arranged for these importations frequently. For the reasons I will set out later, I reject your position that you thought the drugs were legal.
50It was submitted on your behalf that I should take into account in mitigation that this drug, having been seized, did not reach users and therefore did not have a deleterious effect on any person or the community. Whilst that is the case, your intention on purchasing and importing this drug was that you would take possession of it. The passage from Nguyen v The Queen and
Phommalysack v The Queen, which I have set out earlier, points to the need to assess the gravity of your offending by what you did – that is, importing these substances - not what could have happened as a result of the importation.51Mr Gumbleton had submitted on your behalf that you paid $350 per kilo for this drug and that your total expenditure for it was in the range of $2,200.[7] If I were to accept that you were planning on selling half ounces (that is, 14 grams) of 'keta' for $1,500, as you told Mr Carbone[8], this was a very significant profit margin, and a large financial reward for a limited outlay. If you were able to sell the FDK at that rate you would have earned more than $600,000 on an outlay of $2,200.
[7]Defence Submissions dated 14 February 2022, [58]
[8]See Summary of Prosecution Opening [204].
52Mr James KC submitted that it would be speculative to rely on that statement to Mr Carbone.
53There is a dearth of cogent evidence as to how much money you would have made from the sale of the FDK. Whilst the burden is on you to establish a factor in mitigation on balance of probabilities, I will sentence you on the same basis on this charge, as on the charges relating to eutylone. That is, that the potential earnings from the sale of FDK are above the low levels seen with drugs such as 1,4‑Butanediol and GBL, but below the very significant amount of money to be made from the sale of drugs such as methylamphetamine and heroin.
Charge 6
54
Charge 6 relates to the trafficking of the drug eutylone between 7 and
12 September 2019. The charge is based on a series of messages between you and Mr Carbone.
55
In those messages you discussed trafficking activity, and then you sent a photo to Mr Carbone of a red rock substance, contained in a clear plastic bag. You told him that you had “got kg for us” and that it would be a good opportunity for
Mr Carbone to get back on his feet. Mr Carbone responded “Sweet”. As I have noted earlier, you were aware that Mr Carbone was having financial difficulties.
56You and Carbone then discussed that you would start selling the drug tomorrow, with a plan that you would go halves. You told Mr Carbone that you had weighed it, and that it was a kilo, and that it would be divided into 36 bags (each bag being approximately 28 grams). Each bag would be sold for $700 each. Mr Carbone suggested selling the bags for $1,000 each, but you rejected that idea, on the basis that at the lower price you could sell the bags more quickly.
57When Mr Carbone's home was searched on 12 September 2019 police located a bag of red rock substance which was found to be eutylone, and which weighed 929.9 grams. The charge is put on the basis that this was the substance you were discussing with Mr Carbone.
58The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment. The commercial quantity threshold for butylone, and hence eutylone, is 500 grams (mixed) and the large commercial quantity of mixed substance is 1 kilogram. The total quantity of drugs trafficked in this charge is nearly twice the commercial quantity threshold and close to the large commercial quantity threshold.
59It was put on the plea that you paid around $650 for this quantity of drug. Selling 36 smaller bags, made up from this quantity, at $700 per bag, the total profit would be around $24,500, to be split fifty-fifty between you and Mr Carbone. This is clearly a significant profit on the initial outlay of $650. As I have already noted, I will sentence on the basis that the potential earnings from the sale of eutylone are above the low levels seen with drugs such as 1,4-BD and GBL, but below the very significant amount of money to be made from the sale of drugs such as methylamphetamine and heroin.
60
You were the organiser of this planned sale, setting the price and involving
Mr Carbone in the selling process.
Personal Circumstances
61You were born in 1992 to parents of Italian and Maltese heritage. You have a younger sister and brother. Your mother was strongly affected by the death of her mother in the year that you were born, with ongoing anxiety and depression.
62Your father abandoned you, your sister and your mother when you were six and your sister was three. He sold the family home without telling your mother, leaving her with the care of two young children, with nowhere to live. She was able to get assistance from the Smith Family and government benefits, and establish a home for the three of you. Following your father leaving you had little contact with him and he did not provide any support to your mother.
63You say that you felt pressure to be the man of the family, from a very young age. In her letter to the court your mother has described the difficulties she had following your father leaving, the death of her mother, and her struggles with raising her children whilst suffering from the mental stress and grief of those losses, and the financial difficulties of raising two children on her own. It is clear that she depended greatly on you when you were a child, and she describes you as her 'rock' since you were a very young boy.
64You struggled at school. You were shy and quiet, and you struggled to pay attention and learn. Although it was advised, when you were in Grade 1, that you attend special classes to assist you, your mother did not support this.
65
You and your family learnt of your father's new relationship when you were in
Year 7 and of his new child in 2004. Learning of this added to your sense of having been abandoned by your father and it appears to have affected your behaviour at school. In Year 8 you were expelled from school for having assaulted a teacher. You enrolled in another high school, but you were not able to pass or compete Year 9. Efforts at completing Year 10 were not successful.
66A positive part of your life as a teenager was your involvement in soccer. You had started playing when you were in Year 9 and were talented at this sport. You played for three years, when aged 16 to 19, at the Victorian 'National Premier League' level, which (at the senior level) sits below the A-League . You played for Epping City, Green Gully and South Melbourne.
67After you left school you found yourself at something of a loose end. It appears your only positive outlet and interest was soccer. You trained four times a week and played on the weekends. You began to mix with negative peers, and gradually lost interest in soccer, leaving you with little to do and no positive social outlets.
68You report having a problem with gambling since you were around 16 years old and that, from the start of 2019, you were gambling heavily at Crown, on a very regular basis. You report that after you became addicted to opioid medication in mid‑2019 your gambling increased to up to $20,000 a night, and you were spending any winnings on that medication.[9]
[9]Ferrari [56], [65], [68].
69Your criminal history records your first appearance in 2011, when you were 19. There were a spate of court appearances apparently linked to your use of methylamphetamine over 2013 and 2014, with you ultimately serving nearly three years in custody before being released on parole in October 2015. I have seen a document stating that your parole was competed on 13 August 2016.
70When you had been released on parole you obtained work as a concreter, which you did for some months, but you ceased due to an injury. You then began buying and selling cars for a time in 2016.
71In 2016 you commenced a relationship with Ms Bailey, whom you had known for years.[10] You were living with her at the time of this offending, and you and she are still in a relationship. You both suffered the grief of two miscarriages and then the stress of attempting to conceive using IVF.
[10]Letter from C Bailey dated 11 January 2022
72
In 2017 you completed a qualification as a personal trainer and commenced working in that role. You were working at a gym with your clients, and reconnected with a man who was a senior member of the Comancheros Outlaw Motorcycle Gang. He offered you a position in the Comancheros. You say that at first you refused, but you did agree to join after having been offered the role of
Victorian Treasurer.[11] As I noted in the discussion on the plea, this mode of entry into an Outlaw Motorcycle Gang varies significantly from the usual process of being an associate, prospect and finally a member.
[11]Ferrari [63]-[64]
73I was told that you “embraced the outlaw lifestyle”. You returned to drug use, predominantly cocaine, GHB, steroids and prescription drugs (mainly opioids). You report that you were shot at in August 2019. You became increasingly paranoid, leading to your move from Docklands to Caroline Springs. You say you were gambling heavily.
74Your membership of the Comancheros is not, on the material before me, relevant to the offending for which you fall to be sentenced. You were associated with another member in respect to Charge 1, but it was not put to me that your membership of that group was used by you to commit these offences, or to involve others in it. It is relevant to me in terms of your attitude towards criminal activity, at the time.
75I was told that you have extracted yourself from the Comancheros. No material was put before me contradicting this statement, although your association with that Outlaw Motorcycle Gang has had some impact on your time in custody. That you have removed yourself from that group is a positive sign of your realisation that involvement with antisocial associates is not good for you.
76You have made good use of your time on remand, taking part in counselling for drugs, for your mental health, and with a life coach, to try and get on a more positive path. You exercise and work at business enterprises such as making and selling clothes which prisoners can wear. You are a mentor for intellectually disabled prisoners, and have a billet role.
77I was provided with a certificate, in October 2022, of your completion of the 24‑hour substance awareness program.
78You also initiated contact with Relink, a program to assist prisoners who are being released from custody. You provided an outline of your planned program to use your insights as to the trajectory to prison to educate young people and help turn them from the path that you took. The author of the letter notes that your lived experience provides a compelling voice from someone who made the poor choices. The Relink providers think that your proposed program has high value.
Drug Use
79You report that you smoked cannabis when you were still in high school, but that this was never a regular habit for you. In 2012, you tried smoking methylamphetamine, and soon became addicted. You developed a habit that led to you offending to fund the purchase of drugs. You report using that drug for a year before being jailed in September 2013.
80You report using steroids and cocaine from approximately 2019, and from mid‑2019 addiction to opioid medication after an overseas trip. You told Ms Ferrari that you were using around 2 grams of cocaine a day, and using 1.5 ml of GHB a week.[12]
[12]Ferrari [53]
81
Whilst you are on remand you have engaged with a drug counsellor, since
April 2021. The report from that counsellor says that you had 15 sessions between 30 April 2021 and 3 December 2021. The author reported that you have engaged very well, with a positive demeanour, and that you demonstrated insight and
self-reflection. She said you have plans for the future, the support of and desire to reconnect with family, and you plan to prioritise your mental health and rehabilitation.
82The results from seven urine screens carried out whilst you have been on remand, between November 2019 and January 2021, were tendered, all of which were negative.
Mental Health
Ferrari
83Ms Ferrari referred to another psychologist's assessment of you in 2020/2021 as presenting with Dependent Personality Disorder, along with Antisocial and Narcissistic Personality traits.[13] That report suggested your intellectual functioning was in the borderline range, although variable performance was shown in different areas which affected the interpretation of the results. It was suggested that you had a specific problem with maths.
[13]Ferrari [42]
84You reported that after you were shot at in August 2019, you became anxious, and experienced a reduction in your cognitive and behavioural functioning. You told Ms Ferrari that one reason you increased your attendance at the casino was because you felt safer in view of the security there. You report the ongoing presence of post traumatic symptoms including nightmares, flashbacks and anxiety. [14]
[14]Ferrari [43]-[45]
85You told Ms Ferrari that your engagement with psychological counselling since being on remand had improved your insight and decision making, with you now taking your goals and values into account, as well as considering how your acts may affect your future, your family and your loved ones. You report improvement in your relationships with your family and your partner.
86
As to your mental state at the time of the examination, Ms Ferrari noted the absence of any depressive disorder and mild symptoms of generalised anxiety disorder. She considered that since August 2019 you presented with
post-traumatic stress disorder. She also considered that you had a history of undiagnosed ADHD, as well as substance use disorders and a longstanding gambling disorder.
87
Ms Ferrari noted links between untreated trauma and ADHD to substance abuse and offending. The timing of the traumatic event in August 2019 was only a short time before your arrest, and obviously that cannot have contributed to the offending before the event. Your counsel did not submit that the opinions of
Ms Ferrari gave rise to mitigation in accordance with the decision of Verdins. In view of that position I will not explore the issues that I have with the report of
Ms Ferrari and her conclusions.
Kreuzer
88A letter from your counsellor Adam Kreuzer was tendered. Mr Kreuzer reports that he had 12, 50 minute counselling sessions with you over Zoom, and at the time of his report further sessions were planned. He reported that you had a positive outlook for the future, and are keen to rebuild your life in a meaningful and healthy way, once you are released from custody. He said you are committed to improving your mental health, and that you positively engage in the counselling process. You are open to feedback and developing strategies to improve your thinking processes.
89Mr Kreuzer says that you appear to take responsibility for your actions in terms of the offending, and that you are keen to assist in educating young people about the dangers and ramifications of such offending. This has motivated you to enrol in a Diploma of Community Services.
90Mr Kreuzer said, 'I believe that Mr Luzza has demonstrated genuine, positive emotional and behavioural growth and development in my time working with him in this capacity'.[15]
Ewing
[15]Kreuzer page 4
91You have also worked with a Life Coach, Ms Ewing, since November 2021. She says that you express understanding of the harm and negative impact of your offending on others, and that you present as very remorseful and ashamed. She also writes of your plan to use your experiences to educate young people about making better choices than you did, and your motivation to put your life on a more positive track.
Gambling And Drug Addiction
92You have a long history of addiction to illicit drugs, in addition to your report that you became accidentally addicted to opioid medication in mid-2019, and this was a motivator for your offending.[16] You also report that you have had a gambling problem since you were 16, which escalated significantly in 2019.
[16]Ferrari [67]-69]
93Neither of these factors are mitigating in terms of the reasons for your offending. They are, of course, part of your personal circumstances and relevant to your prospects of rehabilitation, specific deterrence and protection of the community.
References
94
I have received several references and letters from your family and friends.
Mr Fazzolari writes very positively of your behaviour, and offers you a position in his handyman business upon your release. Your caseworker at Port Phillip Prison writes of your assistance to other prisoners by helping them with personal training, supporting other prisoners who were vulnerable, taking part in education, and that he has supported you in applying for a position as a peer listener. He says you do not present with the behaviours or attitudes often associated with members of OMCGs. He says you appear to regret your decisions in the past, and want to turn a new page in your life.
95Ms Robinson provided a letter in which she told me about your early life, which she observed as a friend of your mother, the difficulty you had with shyness without your father. She says that the offending for which you are to be sentenced is out of character, compared to the boy she knew, and that she believes you are very remorseful, and determined to change for the better.
96Ms Bailey, your partner, provided a letter setting out a number of personal aspects of your lives together. You have both suffered from the difficulties of not having contact after your arrests, and because of the limitations on visits by reason of the pandemic. You have worked together on your Jail Fit clothing business. You are fortunate to have her continued love and support.
Factors in mitigation
Plea of Guilty
97You have pleaded guilty to the charges before me. This occurred after negotiation and a contested committal hearing. I accept that this was a complicated matter, and that the nature of the drugs involved meant that time was legitimately spent determining whether they were analogues. The nature of the charges to which you have pleaded demonstrate that this was a complex matter and settlement.
98The mitigation afforded by your pleas of guilty is significant. They have saved a considerable amount of time and effort on the part of the prosecution, and of court time. This is always a matter in mitigation, but in view of the impact of the pandemic and lockdowns on the operations of the court the weight to be afforded in this respect is greater than might otherwise have been the case.[17]
[17]Worboyes v The Queen [2021] VSCA 169
Cooperation with Law Enforcement– s16A(2)(h)
99The Crimes Act 1914 requires me to consider the degree to which you have cooperated with law enforcement agencies in the investigation of the offences or other offences. This is a separate consideration to your pleas of guilty. I have noted that I have rejected your explanation given to the police in interview for the importation of the drugs.
100An additional factor, raised after the last plea hearing, is that I have been informed that you have provided to police information as to the location of a high powered firearm. It is, of course, of benefit to the community that firearms be surrendered to the police and thus not be available for misuse.[18] None of the offending for which I will sentence you involves the use or presence of a firearm, so this cooperation is unconnected to the offences for which I will sentence you.
[18]DPP v Tiba [2021] VSC 515, [91]-[92]
101Your cooperation with the authorities in this way gives rise to a modest degree of mitigation of your sentence.
Remorse / Contrition
102I accept that you are remorseful for your acts. I take into account in this respect your pleas of guilty, and the contents of the references and reports which I have received. It is also relevant that you have removed yourself from the Comancheros, and are seeking to use your experiences to teach others not to engage in such criminal conduct.
COVID Impact on Remand
103You were remanded in custody in September 2019. The pandemic began to have real effect on your time in custody from late March 2020. A significant impact was that the visits you had been receiving from your family could no longer take place. Your contacts with Ms Bailey had been limited by reason of her being a co-accused, but then when she was permitted to communicate with you this was limited due to the pandemic and the limits on visits.
104It is apparent to me from the letters I have received that you are close to your family, and that not seeing them, or Ms Bailey, will have been very difficult for you all. Despite the limitations on activities whilst on remand and on time out of cell and contacts due to the pandemic, you have made very good use of your time on remand.
105In early October 2022 I was provided with an affidavit sworn by your instructor, exhibiting a typed diary which you kept regarding lockdowns whilst you were on remand, which commenced on 28 December 2021 and ran to 17 July 2022. You have recorded the onerous conditions, including lockdowns enabling only one hour out of cell per day, limited or no contact with the outside world, the fear of further COVID-19 related lockdowns, and your concerns and anger over the impact of the rules, conditions and shifting regimes. A feature of these entries is the stress caused by the uncertainty of when a lockdown might be called, as well as the limitations on contact with family and friends, caused by the pandemic and an IT issue at the prison.
Prospects of Rehabilitation
106You have made substantial and persistent efforts at addressing your issues, improving your insight and decision making, improving your interpersonal relationships. You have a more positive direction in life, family support, and potential employment in the future. You appear to have the ability to see an opportunity for work or business, and to act on it, such as the Jail Fit clothing project. It is to be hoped that in future you will direct your energies to pro-social and legal activities rather than drug trafficking.
107You have maintained your relationship with Ms Bailey, which is a positive sign and reflective of your commitment to each other. I have noted the conversations set out in the Prosecution Opening in which she raised her concerns about your involvement in the Comancheros and drug activities, but these did not apparently deter you from your offending. She, and I hope you, will better understand the severe consequences that can flow from involvement in criminal activity and this may cause you to listen to her good advice in future.
108You are now a man of 30 years old. Although your previous contact with the criminal law, and imprisonment, did not prevent you from engaging in the offending for which I am sentencing you, you are now older, and you have the strong relationship with Ms Bailey. You have also taken significant steps to address your underlying issues and the causes of your offending. You have been proactive in doing so, and in planning and setting up a better future.
109I consider that you have reasonable prospects for rehabilitation. In reaching that conclusion I have taken into account not only your work since you were arrested, but also the long period of offending, your decision to join the Comancheros, both of which were in the face of your partner's opposition, and I have also taken into account your criminal history.
Delay
110The offending for which you are being sentenced largely occurred in 2019. After the matter resolved at the committal hearing in May 2021 you were arraigned on 7 October 2021. The plea was listed on 7 February, and continued on 21 May 2022. It was then adjourned at your request to a further hearing on 3 October 2022.
111The time it has taken to resolve the matters and have the plea hearing listed and concluded is substantial, but not inordinate, in all the circumstances of the case and the pandemic. Nevertheless, it is a factor in your favour that you have been able to take steps to progress your rehabilitation in that time.
Totality
112As I noted at the outset of these reasons, the charges that you are facing overlap in time. In arriving at the individual sentences, I am mindful that in respect to each charge you are to be sentenced for the conduct encompassed by that charge, only.
113You committed a range of different offences and this should result in some cumulation between the sentences. At the same time, I am mindful of the need to impose a total effective sentence which fairly represents the totality of your offending, but no more. Given the number and range of offences, I have significantly moderated the orders for accumulation to achieve this end. Furthermore, as I indicated earlier, I will not order any cumulation on Charge 4, the proceeds charge.
Parity
114Eight other people were charged with the offending connected to yours. The charges against one of these people were withdrawn as he had been deported. Two of the people, including Ms Bailey, were sentenced in the Magistrates' Court.
115The offending alleged against your co‑accused is generally very different to the offending to which you have pleaded guilty, save in respect to Mr Carbone. Relevant to the sentence to be imposed on Charge 6, I sentenced Mr Carbone to five years and six months, with a non-parole period of four years. The charge of commercial quantity trafficking he faced encompassed not only this quantity of eutylone, but also trafficking in FDK as a courier for you, and trafficking in MDMA on his own behalf.
116Mr Carbone had prior convictions for trafficking cocaine and MDMA.
117Whilst Mr Biricik and Mr El-Cheikh are charged with offences in connection to the matters falling under Charge 2 in respect to you, they have pleaded guilty to different offences and conduct, and so the sentences imposed on them are of little or no relevance in respect to your sentences. I have endeavoured to bear in mind the relativities of conduct, charges, and sentences when arriving at your sentences, and the sentences imposed on the other related offenders.
Other Sentencing Provisions and Principles
118The provisions of the Victorian Sentencing Act, and the Commonwealth Crimes Act, set out a number of matters which are to be taken into account in sentencing. These include just punishment, denunciation by the court of the offending, protection of the community, and deterrence both general and specific.
119In respect to drug offending, general deterrence, just punishment and denunciation are important factors in sentence. I have already set out in detail how I think the nature of the drugs you dealt with impacts on the principle of general deterrence.
120I must, of course, take into account your personal circumstances, and the nature and circumstances of the offence, including whether the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character. Your prospects of rehabilitation are an important factor, also.
Gravity of offending
121I have already set out the principal facts relevant to the gravity of your offending, in the summary above, following the description of each charge. Each of these offences occurred in the context of other offences, which were of a similar nature, and, in respect to Charges 1, 2, and 5, involved multiple transactions. I have avoided using labels such as 'low', 'medium' or 'high', so as to focus on the facts relevant to each charge.
122When assessing the gravity of drug related offending relevant considerations include the weight of the drug involved and how the quantity compares to any relevant threshold amounts, also the value of the drugs, the nature of the enterprise, the role of the offender and the motivation for the offending. The propositions set out by the Court of Appeal in Nguyen v The Queen[19] remain a helpful summary to the matters to be considered in this assessment.
[19]Nguyen v The Queen (2011) 31 VR 673, 681-682 [34]
123The explanation you gave to the police when you were interviewed was that you were importing these substances for use in supporting training. You told the police, and Ms Ferrari, that you researched the substances online, for example using and you thought that you could lawfully import them.
124This explanation is contradicted by the steps that you took to avoid detection in respect to the parcels being brought into the country. It is contradicted by the discussion you had with Ms Bailey about you dealing drugs. You referred to 'keta' in the course of your discussion with Mr Carbone in September 2019, which I took to be a reference to you dealing in ketamine.
125Defence counsel submitted, consistently with the position taken by you in the police interview, that the drugs were sold in connection with gym training. As I indicated during the plea hearing, the statements made by you when you were interviewed included several important representations which were clearly untruthful. Defence counsel ultimately conceded that it was open to me to reject the explanations given in the course of the interview.
126In any event, regardless of the context of the potential sales, you have accepted by your pleas to the trafficking charges that those drugs were or were intended to be sold to consumers.
127It was also initially submitted on your behalf that a relevant factor in sentence was the nature of the drugs imported and trafficked. A paper was tendered from experts based in Europe as to the nature of the analogue drugs, and a brief response was provided by the prosecution.[20] Following discussion defence counsel did not pursue his written submissions regarding the relative harmfulness of the drugs in issue. This position was confirmed by Mr James.[21]
[20]Prosecution Submissions dated 17 February 2022, Annexure B
[21]Defence Submissions dated 17 May 2022, [54]
128As has been made clear by the High Court, and the Victorian Court of Appeal,[22]
under the quantity based sentencing regimes established respectively for drug trafficking offences (State) and drug importation offences (Commonwealth), there was no scope for a sentencing judge to differentiate between drugs on the basis of perceived differences in harmfulness.
[22] DPP (Cth) v Maxwell (2013) 228 A Crim R 218, [27] with reference to Pidoto [ref] and Adams [ref]
General Deterrence
129Defence counsel, by reference to the judgment in DPP (Cth) v Maxwell, submitted that the financial reward anticipated or received by an accused was relevant to sentencing - and he referred to several passages from that case which I have set out and will not read out. In particular he referred to the following part of that judgment:[23]
'Ordinarily, of course, it is unnecessary for the prosecution to prove — and it may in any case be difficult or impossible to prove — what the anticipated return for the offender was. But, on ordinary principles, it is open to a person convicted of involvement in a drug importation to seek to mitigate his/her culpability by establishing on the balance of probabilities that he/she stood to derive little or no benefit personally.
'Likewise, in a case such as the present, it must be open to the offender to prove that a commercial quantity of the particular drug imported had a fraction of the wholesale or retail value of a commercial quantity of another drug. Put another way, by this means the offender seeks to establish that — contrary to the legislative presumption — the importation of a commercial quantity of the drug in question was not 'truly commercial in nature' but could only ever have produced a relatively small return.
…
'Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general. As has often been said, the sentence to be imposed for a drug importation (or trafficking) offence must signal both to the offender, and to other would-be offenders, that the potential financial rewards to be gained from such activities are outweighed by the risk of severe punishment. Obviously enough, the greater the anticipated reward, the more powerful the deterrent message must be. The converse is also true.' (footnotes omitted)
[23]DPP (Cth) v Maxwell [29]-[30], [34], see also [35]
130In DPP (Cth) v Maxwell the drug imported was GBL (gamma-butyrolactone), a substance from which GHB could be made. Maxwell had imported three litres of that substance, with a wholesale cost of $6,600 and $9,000. Its potential street value was between $10,440 and $17,400. So, Maxwell could have made a profit slightly less than double the initial outlay.[24]
[24]DPP (Cth) v Maxwell, [8]
131As I have already set out, I accept that consideration of the potential or actual profits from dealing with a drug are relevant to the sentencing exercise, in addressing the gravity of the offending, and by the weight to be given to specific and general deterrence, and community protection. I accept that where an offender can reap hundreds of thousands of dollars, or more, the need for specific and general deterrence increases, so as to counterbalance the potential monetary reward for such offending.
132I also accept that the nature of the enterprise, which here involved purchases online rather than participation in some larger criminal network or scheme, is relevant to the offender's moral culpability and the gravity of the offending.
133Turning to the offences committed by you, I have already indicated that I will treat the profits that might have been earned as above the low level associated with drugs such as 1,4-BD, but under the level associated with drugs such as methylamphetamine.
134What this means is that in respect to the offences involving FDK and eutylone, I will proceed on the basis that whilst the profit margin was very high, you were not making hundreds of thousands of dollars.
135
Accepting that the initial outlay to purchase these substances online was low, as has been submitted, it nevertheless appears that significant profits could be made. Thus, while the amounts to be gained by you were not vast, in comparison to upper range cases such as those referred to by the Court of Appeal in
DPP (Cth) v Maxwell[25]
, neither were they at the lowest end, as was the case in the case of Maxwell.
[25]DPP (Cth) v Maxwell, [24]
136Furthermore, the ease of purchase of the drugs, and the lower initial outlay, are factors that themselves give rise to the need for specific and general deterrence.
137Mr Gumbleton had submitted that the process of purchasing the drugs online was simple, that anyone could purchase the substances online, and that the low cost meant that purchases of this type were open to many people.[26] This means that real weight must be given to general and specific deterrence. Whilst the profits might not be as large as those seen in cases involving drugs such as heroin or methylamphetamine, the ease of such transactions provides its own lure to those who may consider such offending. The statement 'it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs'[27] still applies to the facts upon which I must sentence you.
[26]Defence Submission dated 14 February 2022, [8], [20], [28], [33], [42], [43]
[27]Per Kaye JA in Dawid v DPP [2013] VSCA 64, [35] cited in Gregory v The Queen [2017] VSCA 151 at [83]
138Thus, general deterrence is a factor of real weight in sentencing you for the drug importations and trafficking, although not to the same extent that it might have been the case if you were offending in relation to methylamphetamine or other high profit drugs.
Specific Deterrence
139Specific deterrence also remains a factor. Whilst you have made good progress in addressing your underlying issues, and you have positive plans for the future, your history, your previous poor choices, and the lure of earning money by criminal means, call for some weight to be given to deterring you from committing offences in the future. In view of your efforts to address the causes of your offending, and your plans to use your experience in a positive way, this factor will carry only slight weight.
Maximum Penalties
140Dealing with drugs of dependence, whether trafficking, possession, importing or attempting to carry out those activities, is considered by Parliament to be serious offending. This is demonstrated by the significant penalties which apply to those types of charges, particularly when the quantities reach marketable or commercial quantity thresholds.
Current Sentencing Practice
141In view of my assessment of the impact of the DPP (Cth) v Maxwell on the application of general deterrence, the sentences imposed for importing or trafficking 1,4-BD, on the one hand, and drugs such as methylamphetamine and heroin on the other, are not comparable, per se, but they do provide some guidance as to current sentencing practice more broadly.
142As I have already stated, I consider the nature of the drugs involved does have an impact on the weight to be given to general deterrence, although this remains an important sentencing factor, for the reasons I have set out. Thus, I do not think that the sentences for offending in respect to 1,4‑BD and substances such as GBL are strict comparators, nor are the cases involving drugs such as methylamphetamine, heroin or cocaine.
143Defence counsel provided summaries of four cases, and I have reviewed several other cases and summaries of other sentences in those cases.[28]
[28]Gayed v The Queen [2021] VSCA 141; Danaf v The Queen [2020] VSCA 226; DPP v Fatho, Van & Huynh [2019] VSCA 311; R v Thorn [2015] ACTSC 218; DPP (Cth) v Maxwell (2013) 228 A Crim R 218; Huynh v The Queen [2022] VSCA 49
144As is always the case, sentences imposed in other matters demonstrate a wide range of sentencing outcomes. The sentences imposed in other cases do not provide upper or lower limits on sentencing, and in this matter in particular they can only provide some guidance as to sentencing practice.
Other Sentencing Provisions
145Charge 5 is a category 2 offence under the Sentencing Act 1991. It has not been submitted that any exception to the requirement that I impose a term of imprisonment not combined with a CCO has been established.
146Charges 3, 5 and 6 are each 'drug offences' as defined in Clause 4 of Schedule 1 of the Sentencing Act 1991. If you are sentenced to a term of imprisonment on one or both of Charges 3 and 5, then you are to be sentenced as a 'serious drug offender' on the next relevant State offence, which is Charge 6.
147I consider that in sentencing you on Charge 6 a term of imprisonment is justified. When sentencing you as a serious drug offender I am to treat protection of the community as the principal sentencing purpose. Whilst I may, to achieve that end, impose a disproportionate sentence, it has not been submitted by the prosecution that I should do so.[29]
[29]Sentencing Act 1991, s6D.
148Pursuant to s6E, any sentence of imprisonment imposed on a serious drug offender for a relevant offence must be served cumulatively upon any other sentence imposed on the same occasion. This presumption is to be applied with reference to the principle of totality.
149In respect to Charge 6, pursuant to s6F I note that I have sentenced you as a serious drug offender, and I direct that this declaration be entered into the records of the court.
Commonwealth Charge Sentencing Matters
150Charges 3 and 5 are offences under the Commonwealth Criminal Code, so that the provisions of the Crimes Act 1914 (Cth) apply to the sentencing regarding those offences.
151The prosecution submissions filed in this matter have provided a helpful overview of the provisions and principles that apply to sentencing on Federal charges. I have had regard to those detailed submissions, but note the following matters, in particular.
152First, I must not pass a sentence of imprisonment unless, having considered all other options, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[30] In your case, for the reasons I have set out above, I am satisfied that no other sentence than imprisonment is appropriate in your case.
[30]Crimes Act 1914 (Cth), s17A.
153Secondly, s16A(2) of the Crimes Act 1914 provides a non-exclusive list of the factors that must be taken into account, where they are relevant and known to the court. In my reasons above, I have addressed, to the extent that I am able to do so, the matters listed in s16A(2). I can and do also take into account the common law principles to which I have referred in my reasons.
Section 16A(2)(c)
154The only factor under s16A(2) to which I have not clearly referred is whether the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character.[31] The two Federal charges are Charge 3, importation of a marketable quantity of eutylone, and Charge 5, importation of a commercial quantity of a border controlled drug. Mr James submitted that the two charges do not form a course of conduct. The prosecution submitted that they did.
[31]Crimes Act 1914 s16A(2)(c).
155Charge 3 consisted of one importation in April 2019, and Charge 5 encompassed 13 separate importations in the course of May to September 2019.
156I have already taken into account that each offence was not an isolated instance of criminal conduct. So that whilst I consider that the Federal charges do amount to a series of criminal acts of the same or similar character, this does not add to the gravity of the charges or lead to a more severe sentence, in your case.
Sentences
157Charge 1 - trafficking in a drug of dependence - two years and six months' imprisonment.
158Charge 2 - attempting to possess a drug of dependence - one year, six months' imprisonment.
159Charge 3 - importing a marketable quantity of a border controlled drug – three years' imprisonment.
160Charge 4 - knowingly dealing with the proceeds of crime – six months' imprisonment.
161Charge 5 - importing a commercial quantity of a border controlled drug - five years' imprisonment.
162Charge 6 - trafficking in a drug of dependence not less than a commercial quantity – four years' imprisonment.
163Charge 7 - possession of a drug of dependence – two months.
164I will first make the orders for cumulation and a set a non-parole period on the State charges. Then I will set the starting date for each Commonwealth sentence, noting the requirement that the first Commonwealth sentence must start on or before the end of the State non-parole period.[32]
[32]Crimes Act 1914 (Cth) s19(3)(d)
165
But for the different requirements of achieving cumulation and concurrency under the State and Federal sentencing regimes, the sentence of five years on
Charge 5 would have been the base. Because of the different requirements, however, the orders for cumulation in respect to the State sentences will be made on Charge 6.
166On the State sentences the orders are:
(a) The sentence of four years on Charge 6 is the base.
(b) Ten months of the sentence on Charge 1, and four months of the sentence on Charge 2, are to be served cumulatively on each other and on the sentence on Charge 6.
(c) The total State sentence is therefore five years and two months.
(d)
On the State sentences I set a non-parole period of three years and
six months.
167On the Commonwealth sentences:
(a)
I direct that the sentence of three years on Charge 3 is to commence
two years before the expiry of the non-parole period on the State sentences.
(b) I direct that the sentence of five years on Charge 5 is to commence 18 months before the expiry of the non-parole period on the State sentences.
(c)
The total period of the Commonwealth sentences is therefore five years and six months' imprisonment. I set a non-parole period of two years and
six months[33] on the Commonwealth sentences, and that non-parole period is to commence at the same time as the sentence on Charge 3.
[33]In the sentencing hearing the non-parole period was declared as 3 years 3 months. Following the hearing the parties agreed that to achieve the intended result, that there would be a total effective sentence of 7 years, with a combined minimum term of 4 years, that the non-parole period on the Commonwealth sentences should be 2 years 6 months.
168Mr Luzza, the combined effect of these orders should be that the total combined sentence on all the charges is seven years' imprisonment, and you will become eligible for parole after having served four years of the combined sentences.
169I state, pursuant to s6AAA of the Sentencing Act 1991, that if you had not pleaded guilty I would have sentenced you to 10 years' imprisonment with a non‑parole period of seven years.
170I will make the disposal and forfeiture orders which are not opposed.
171The total effective sentence is seven years with a non-parole period of four years. I declare that you have served 1,140 days of pre‑sentence detention.
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