Director of Public Prosecutions v Mazzacca
[2023] VCC 976
•12 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-21-02622
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLENN MAZZACCA |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16–19 January 2023 (Trial) | |
DATE OF SENTENCE: | 12 May 2023 | |
CASE MAY BE CITED AS: | DPP v MAZZACCA | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 976 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Sentence post jury verdict – trafficking in commercial quantity of methamphetamine, trafficking in 1,4-Butanediol, possess and use drug, possess proceeds of crime, various driving offences. Protracted case history. Plea of guilty to some charges on indictment before jury and pela of guilty to non-charged alternative to charge 1 being trafficking simpliciter. Confined issue at trial being question of knowledge of commercial quantity. Significant amounts of methamphetamine and 1,4-Butanediol. Mature aged offender. Relevant criminal history. Appalling driving history. Late plea of guilty. Degree of hardship in custody. Unexpected evidence of reform post original remand.
Legislation Cited: Crimes Act 1958 (Vic), Road Safety Act 1986 (Vic), Sentencing Act 1991 (Vic), Drugs, Poisons and Controlled Substances Act 1986 (Vic).
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v McKee [2003] VSCA 16; Akoka v the Queen [2017] VSCA 214; Markarian v The Queen (2005) 228 CLR 357; R vPidoto & O’Dea (2006) 14 VR 269; Gregory (a pseudonym) v The Queen [2017] VSCA 151; Mitchell v The Queen [2016] VSCA 321; Vincent v The Queen [2021] VSCA 9; Roxburgh v The Queen [2021] VSCA 181; DPP vSayah [2020] VCC 1469; Polos v the King [2022] VSCA 258; Worboyes v The Queen [2021] VSCA 169; R v Novakovic(2007) 17 VR 21 and Koukoulis v The Queen[2020] VSCA 19.
Sentence: TES 4 years 10 months with a non-parole period of 3 years and 2 months. Fined an aggregate of $1000 with conviction for driving and use drug offences. Drivers’ licences cancelled and disqualified for 2 years after release on parole. PSD declared at 262 days.
Section 6AAA declaration relating to only part of the charges – but for plea of guilty, sentence would be on certain charges TES of 4 years with NPP of 2 years 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Petric | Office of Public Prosecutions |
| For the Accused | Ms M. Brown | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Glenn Mazzacca, you were arraigned before a jury on the following charges on 16 January 2023:
Charge 1: Trafficking in a Drug of Dependence – Commercial Quantity (Methylamphetamine) contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 – 25 years maximum.
Charge 2: Trafficking in a Drug of Dependence (1,4-Butanediol) contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 – 15 years maximum.
Charge 3: Possession of a Drug of Dependence (1,4-Butanediol) contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 – 15 years maximum (put as an alternative to charge 2).
Charge 4: Possession of a Drug of Dependence (methamphetamine) contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 – 15 years maximum.[1]
Charge 5: Knowingly Dealing with the proceeds of Crime contrary to s 194(2) of the Crimes Act 1958 – 15 years maximum.
[1]It is not suggested the court should be satisfied on the balance of probabilities that the offence was not committed by the accused for any purpose related to trafficking and accordingly, the higher penalty applies. I note that in the circumstances of this case, I will make the sentence on this charge wholly concurrent, given the sheer quantity of the same drug you are trafficking on the same date.
2You pleaded guilty to charges 2, 4 and 5. You pleaded not guilty to charge 1, though pleaded guilty before the jury to the alternative charge of trafficking in a drug of dependence namely methamphetamine.[2]
[2]Which, though was not on the indictment, was available as an alternative plea pursuant to s 219 of the Criminal Procedure Act 2009 (CPA).
3After a trial lasting four days, the jury convicted you of charge 1 on 19 January 2023.
4You agreed to have this Court hear and determine the following related summary offences (RSO’s):
Charge 8: Use Methamphetamine – s 75 Drugs Poisons and Controlled Substances Act 1981 – Maximum Penalty: 30 penalty units (pu’s), and/or 1 year imprisonment.
Charge 10: Fail Oral Fluid Test within 3 hours of Driving contrary to s 49(1)(h) of the Road Safety Act 1986 – maximum penalty being for first offence to a fine of not more than 12 pu’s, a second offence, to a fine not more than 60 pu, and for a subsequent offence to a fine of not more than 120 pu.[3]
Charge 11: Exceed Speed Limit by less than 35kmph – Rule 20(1)(a) Road Safety Rules 2017 – maximum penalty of 10 pu.
Charge 12: Unlicensed Driving contrary to s 18(1)(a) of the Road Safety Act 1986 – penalty not exceeding 60 pu or imprisonment not more than 6 months.[4]
[3]It is alleged that the accused has committed a subsequent offence. Pursuant to s 50(1E) of the Road Safety Act 1986 in relation to mandatory licence cancellation:
On convicting a person, or finding a person guilty of an offence under section 49(1)(bb), (h) or (i), the court must, if the offender holds a driver licence or learner permit, cancel that licence or permit and, whether or not the offender holds a driver licence or learner permit, disqualify the offender from obtaining one for—
(a) in the case of a first offence, a period not less than 6 months; and
(b) in the case of a subsequent offence, a period not less than 12 months
[4]The court has a discretion in any case to suspend for such time as it think fit or cancel all driver licenses and learner permits held by that person and, whether or not that person holds a driver license or learner permit, disqualify that person from obtaining a drive license or a learner permit for such time (if any) as the court thinks fit.
Summary of Offending on 4 February 2021[5]
[5]Amended Summary of Prosecution Opening for Trial dated 14 December 2022.
5At the time of the offending you were 39 years of age (DOB: March 1981) and resided in Carrum Downs.
6At about 3:40 pm, you were observed by Leading Senior Constable MORGAN and Senior Constable CUTE of Somerville Highway Patrol, driving a 2006 silver Holden Vectra sedan travelling east on Williams Road Carrum Downs, between Frankston-Dandenong Road and Bandler Street.[6]
[6]Ibid, Statements of LSC MORGAN & SC CUTE.
7The authorised speed of Williams Road is 50km/h. At the time the traffic was medium, visibility was good and the weather clear.
8Your speed was estimated by LSC MORGAN to be between 60 km/h and 70 km/h. LSC MORGAN measured your speed using a Moving Mode RADAR in stationary mode, and confirmed it to be 67 km/h.[7]
[7]Ibid, Statement of LSC MORGAN.
9You were intercepted by police, and stopped the silver Vectra in Cadles Road, Carrum Downs.
10Police activated their body worn cameras (‘BWC’) and captured the intercept.[8]
[8]Ibid, Exhibits 3 & 4 – BWC Footage.
11At the intercept, you were asked for your license, and indicated you didn’t have one due to it being suspended a couple of years ago. Upon being asked if you had taken any drugs, you indicated he had taken some a couple of hours ago.
12LSC MORGAN performed a preliminary breath test that indicated that there was no alcohol in your system. A Preliminary Oral Fluid Test (‘POFT’) was subsequently conducted though revealed the presence of methylamphetamine.
13You provided a false name of Glenn Blackwell, with date of birth 14 March 1981 and home address being in Dandenong (you were not charged with, nor will you be sentenced for stating a false name).
14Police returned to their vehicle to conduct checks on their database to confirm your identity and were naturally unable to do so with the details you provided.
15LSC MORGAN returned to you to have a further discussion about your identity. As you exited the silver Vectra SC CUTE observed you holding your pants up, and two small plastic bags fell onto the road surface.
16SC CUTE retrieved the small plastic bags on the road which contained crystallized substance believed to be methylamphetamine.
17At about 4 pm, you contacted your partner Caris MILES and indicated you had been pulled over by police.[9] MILES (being the registered owner of the silver Vectra) then arrived at the scene who identified you as Glen MAZZACCA. She was wearing a black singlet and grey trackpants.
[9]Ibid, Statement of Caris MILES.
18SC CUTE conducted further checks whilst LSC MORGAN started to search the silver Vectra.
19SC CUTE observed you fidgeting around and standing close to MILES. You told MILES that you had something hidden in your pants and for her to take it. MILES told you ‘No’ and you were observed leaning over and placing a large plastic bag containing multiple smaller plastic bags, containing a crystalline substance believed to be methylamphetamine, down the back of her grey track pants. After observing this SC CUTE instructed you and MILES to separate.
20SC CUTE asked MILES to produce the large plastic bag, which she complied with. You then immediately admitted to concealing the large plastic bag down the back of MILES grey track pants.
21During a search of the silver Vectra the following items were located and seized by police:[10]
(a) Drug paraphernalia including three empty syringes/plungers, set of drug scales, two glass ice pipes, blue ‘bic’ lighter, and large quantity of rubber bands in bag located in front passenger seat; a ‘Hammer’ branded Multi‑tool;[11]
(b) A 5 litre black container marked as water-based degreaser (‘the 5L black container’) containing approximately 1.25 litres of clear fluid suspected to be GHB (gamma hydroxybutyrate) on the rear floor-well behind the driver’s seat;
(c) A black Honeywell lock safe (‘the black lock safe’), located on the middle of the rear passenger seat.
[10]Ibid, Statement of SC CUTE & LSC MORGAN.
[11]Ibid, Exhibit 26 – Photographs 31 – 51.
22Police also located various smaller bags containing suspected methylamphetamine and located crystals of suspected methylamphetamine at the scene.
23You were subsequently arrested and searched by LSC MORGAN who located and seized a set of keys, and a wallet containing cash in the amount of $10,880.00.[12]
[12]Ibid, Statement of LSC MORGAN, Exhibit 26 – Photograph 30.
24Police asked you for the keys to the black lock safe and you indicated that you didn’t have one, and that there was nothing in the black lock safe.[13]
[13]Ibid, Exhibit 3 & 4 – BWC Footage.
25The silver Vectra was subsequently impounded for a period of 30 days.
26You were conveyed to Frankston Police station, where you provided a sample of oral fluid for Oral Fluid Test which detected the presence of an illicit drug. This sample was subsequently forensically tested and found to contain methylamphetamine.[14] (Charge 10 – Fail Oral Fluid Test within 3 hours of Driving).
[14]Ibid, Exhibit 1 - Certificate of authority to take oral fluid, Exhibit 2 – VIFM Toxicology Certificate.
27You were then identified by further police checks and confirmed not to be authorised to drive a motor vehicle in any state or territory after a period of disqualification.[15] (Charge 12 – Unlicensed Driving).
[15]Ibid, Exhibit 29 – VicRoads Extract.
28You were interviewed and remanded in custody by police.
Investigation[16]
[16]Ibid, Statement of Det LSC MEYER.
29Detective Leading Senior Constable Johann MEYER from the Frankston Crime Investigation Unit attended the scene at about 4:30 pm with Detective Sergeant DALY.
30Det LSC MEYER photographed the scene, including the silver Vectra and items seized.
31Investigators returned to Frankston Police station with all exhibits seized by SC CUTE.
32SC CUTE opened the black lock safe and located a package approximately 20–25cm long. Investigators observed a white plastic package wrapped with elastic bands. Inside the plastic bag was contained a large quantity of crystalline substance, alleged to be methylamphetamine.[17]
[17]Ibid, Exhibit 26 – Photographs 12- 19.
33Investigators counted the large amount of cash seized from the accused with an amount of $5,880 alleged to be a result of drug trafficking. (Charge 5 – Knowingly Dealing with the proceeds of Crime).
34Investigators were briefed in relation to MILES’s involvement, and they attended your address in Carrum Downs.
35DS LAMB and SC ZUREK attended your Carrum Downs address, where MILES confirmed she was your de facto partner residing with you at the address.
36MILES led them to the master bedroom and opened a safe belonging to the accused. By consent the investigators searched the inside of that safe, located and seized a plastic ‘Passiona’ soft drink bottle (‘the plastic bottle’) containing about 300mL of clear fluid alleged to be GHB and an assortment of prescription tablets.[18]
[18]Ibid, Exhibit 36 – Photographs.
37MILES told Police that you bought the black lock safe about a month ago, and that he keeps the keys at home normally or on his keychain.[19] That you claimed not to have any keys to the safe in your car was a matter before the jury in your trial as incriminating conduct.
[19]Ibid, Statement of MILES.
38The black lock safe is a Honeywell Fire & Water Safe Chest Model #1502. The product is airtight, containing an airtight cavity necessary for both fire and waterproof protection.[20] I digress slightly to indicate that this level of detail about the properties of the safe was made available by the Prosecution as a result of the way your contested committal was conducted.[21] There, it was seriously floated by your then legal representatives that the DNA evidence linking you to the contents of the safe (see below) may have been deposited there through some kind of ‘vapor like penetration’ of same.
[20]Ibid, Statement of Bob MOSBAUGH.
[21]Not counsel in this trial and plea.
Forensic analysis
39Drug analysis revealed the following:[22]
[22]Amended Summary of Prosecution Opening for Trial dated 14 December 2022, Certificate of Analyst, Joanne BURKE dated 17 May 2021.
(a) the total quantity of 1,4-butanediol seized of 1408.7g (located in the 5L black container and the plastic bottle);
(b) the total quantity of methylamphetamine seized in the black lock safe box is 179.65g;
(c) The results of the items seized and purities of the methylamphetamine are as follows:[23]
[23]Ibid.
Item Net Quantity (grams) Purity (%) Plastic bag in black lock safe 222.8 81 Plastic bag containing white crystals & powder 4.5 86 Plastic bag containing off-white crystals 9.5 72 Plastic bag containing off-white crystals 5.8 63 Plastic bag containing off-white crystals 0.2 84 Plastic bag containing off-white crystals 2.1 79 Plastic bag containing off-white crystals 1.9 82 Off-white crystals 3.4 85
40DNA evidence confirmed you to be a significant contributor (100 billion times more likely) of a DNA sample taken from the inside of the plastic bag containing methylamphetamine in the black lock safe.[24] (Charge 1: Trafficking in a Drug of Dependence Commercial Quantity; Charge 2: Trafficking in a Drug of Dependence (1,4-Butanediol)).
[24]Ibid, Case Results Summary, Ross Campbell dated 22 June 2021, Statement of Tracey DAELMANS dated 22 March 2022.
Case history
41An astonishing amount of Court resources have been taken up by the case.
42A contested committal was conducted on 8 December 2021, where a number of issues concerning possession were explored, including the truly absurd question of whether your DNA could have seeped into the safe without you touching anything in it that I alluded to above.
43In this Court there was a directions hearing on 21 January 2022. There was a further directions hearing on 23 March 2022. There was an intensive directions hearing on 5 April 2022, followed by a further directions hearing on 19 May 2022. Yet another directions hearing proceeded on 1 August 2022. The defence response filed as late as 21 September 2022 claims you had no knowledge and hence was not in possession of the drugs in question. There was a final directions hearing with new Counsel on 26 September 2022.[25] The matter was then set down for case conference before me on 22 November 2022, which did not see the matter resolve. Then the matter was adjourned to a Sentence Indication hearing, initially on the first date of the trial (given the lateness of the application), on 16 January 2022 that had to be brought forward to 14 December 2022 so as not to be on the first day of the trial. On the 14 December 2022, during the Sentencing Indication Hearing that had been applied for on your behalf, I was informed that you did not in fact want a Sentencing Indication and wished to proceed to trial. Accordingly, no sentence indication was given, and the matter was confirmed to start as a jury trial on 16 January 2023.
[25]Again, not Counsel in the trial.
44You had new Counsel appearing for you in the trial who sensibly streamlined the running of the case. You pleaded guilty to most of the charges on the indictment before the jury as I indicated in the introductory remarks to this sentence.
45Importantly, at the trial, the concession was made that you were in possession of the methamphetamine located on you, and in the same, did so for the purposes of trafficking. It was also conceded that the money found on you was the proceeds of crime. The issue for the jury to determine was refined to a single proposition – ‘did you relevantly know or intend to traffic a commercial quantity of the methamphetamine located in the safe?’. They answered unanimously that you did.
46I will take this opportunity to comment on how well you were served by your Counsel, who came into the matter relatively late, and brought much-needed forensic examination of the true issues in the case, rather than advance some of the more questionable matters that her predecessors may have. If there was a triable issue about the commercial aspect of the offending, it was run with economy and focus. That the trial was short and confined and run efficiently and economically is due to no small part to her endeavours. Your partner was not required to give evidence for instance in what must have been a difficult position for her to potentially be placed in. You did not give evidence on your trial.
47You are not to be punished for running a trial. Your plea of guilty to certain charges meant that the issues in the trial were very limited. It is sufficient to say that those pleas were very, very late and it was not advanced on your behalf that they were accompanied by any remorse.
Matters personal to the accused
48Mr Mazzacca, you are now 43 years of age. You have a partner and young family.
49I’m told that your mother was a lifetime heroin addict, and your father was an alcoholic. Your childhood was marred by family violence and substance abuse. You were placed in care at the age of four because of the conduct of your father. Your mother had regained custody after your father disappeared.
50Your mother re-partnered when you are aged nine and in the subsequent relationship, she found herself in, also centred around substance abuse.
51Drug use was rampant at home and to that extent substance abuse was normalised. This was a source of conflict with your mother and at 15 she kicked you out of home apparently in an effort to shock you. Her actions did not have the desired effect. You continue to use drugs and began trafficking in order to live. You lacked what was euphemistically called pro-social supports. It explains the many and varied poor decision you later made in life — that is to say you commenced drug use at an age where you couldn’t possibly appreciate the damage it would do to you.
52This grim childhood and adolescence was not said to enliven the principles in Bugmy v The Queen,[26] given the absence of further corroborating and cogent evidence. That is not to say it is irrelevant, far from it. I take into account the way you were shaped and raised. I take into account the way in which you became dependent on drugs as well, in the way the Court of Appeal says in McKee & Brooks.[27] Mr Petric, with conspicuous fairness agreed that there should be some moderation of the sentence I impose because of those factors, whilst not losing sight of the fact that this is serious offending. I will moderate the sentence I impose to a degree for the reasons I have just recited.
[26][2013] HCA 37.
[27]R v McKee [2003] VSCA 16 (‘McKee & Brooks’).
53In a sensible measured well-constructed plea Ms Brown went on to summarise the last decade of your life particularly as one that has been marred by drug use and offending. The former appears to arise at times of stress in your life and at times when you’re unable to cope. The latter inevitably is associated with the former.
54Your Counsel conceded that a term of imprisonment with a non-parole period was inevitable.
Prior criminal history
55Your prior convictions commence in 2012, where you were sentenced for violence offences, breaching an intervention order, driving offences (including fail oral fluid test) and possess, use and traffic methamphetamine. You received a 12-month Community Corrections Order (CCO) for that.
56In 2013, there were further offences of violence and breaching an intervention order, drive disqualified (four times) and exceed prescribed concentration of alcohol. You were sentenced to 6 months imprisonment suspended for 18 months. You later breached this suspended sentence.
57You breached the 2012 CCO and in 2013 were resentenced – this time to 3 months imprisonment suspended for 2 years.
58In 2014 you again drove disqualified and breached an intervention order and were placed on a suspended sentence again. I surmise you breached those as well.
59In August 2014 you were sentenced to 2 years 8 months with a non-parole period of 18 months for armed robbery and again dealt with for drive disqualified (where you received 4 months imprisonment).
60A month later, the breaches of suspended sentences were dealt with by way of short concurrent sentences.
61In 2015, it appears you were dealt with for yet more breaches of intervention orders by way of suspended sentences.
62Relevantly in 2107, you possessed and used amphetamine and were fined.
63That same year you breached bail, dealt with proceeds of crime, possessed ecstasy and GHB, and trafficked methamphetamine. You received 90 days plus a 12-month CCO. You breached that order too. Somehow, you were placed back on a CCO to commence after you had served a term of imprisonment. That term was imposed for more charges of possess methamphetamine, cocaine, ecstasy (78 days). You again were dealt with for fail an oral fluid test. You were fined.
64You admitted relevant and recent prior convictions from New South Wales 2019.
65In 2020, you breached the CCO I just mentioned and were fined. You were dealt with for new offending of drive whilst disqualified (4 times) breach intervention, possess 1,4-Butanediol and deal with proceeds of crime. You received a month imprisonment. The custody notes say you suffer from depression and lower back pain. There is a reference in your leap prior criminal history to suffering from depression and anxiety. No funding was available for a psychological report to assist me in that regard and the point wasn’t pursued.
66This present offending before me occurs a mere seven months after that appearance in June 2020.
67Yours, Mr Mazzacca, is a persistent history of breaching supervisory orders, including bail, license conditions, CCO’s for over a decade. There are innumerable orders affecting license regularly ignored. I count 14 previous instances of drive disqualified and other instances of driving whilst unlicensed. You have four prior convictions for fail drug test while driving or exceed the prescribed concentration of alcohol. You have two prior convictions for trafficking methamphetamine. You have prior convictions of for possession of 1,4-Butanediol as well as possess proceeds of crime. It is nothing other than a relevant prior criminal history. You are difficult to deter. Ms Brown conceded your history is a relevant one.
Post offence
68The immediate consequence of your offending was that you were remanded in custody. Your time in custody was onerous. You spent 149 days between Port Phillip Prison (PPP) and the Melbourne Remand Centre (MRC) in early 2021. The vaccination process was just beginning to be rolled out in Victoria but there were still strict rules about who could visit and under what circumstances. I will return to other external factors that made your time in custody a little more arduous than it might be for other prisoners.
69You entered the Cottage in July 2021 having spent some five months in custody on remand. You did well at the Cottage for four months knowing that any breach would result in you being returned to custody. The reference from Ms Hutchinson of the cottage dated October 2021[28] is testament to the progress that you made. That progress is fortified by the fact you did not reoffend from the time that you were bailed until your plea date.
[28]Exhibit 4 – Letter of the Cottage dated 5 October 2021.
70Ms Brown referred to the case of Akoka v The Queen[29] in support of the proposition that time spent in restrictive environments where one’s movement and communication is not free, and when one is bound by the rules of a particular residential rehabilitation centre otherwise, they are returned to custody is a relevant matter in two ways.
[29]Akoka v the Queen [2017] VSCA 214 at [109].
71Although time in a residential facility does not necessarily equate to presentence detention in a numerical sense, it is taken into account in a more global way reflecting the limitations on your liberty. Further it is used in an additional way as a tangible example which I can refer to when assessing your prospects of reform.
72There is no small degree of anxiety that you suffer regarding the fate of your partner and your young family. In this regard the personal circumstances of your partner Ms Miles needs some explanation. She has had more than her fair share of adversity to deal with in life. She has been very supportive of you. You have a child who was between three and seven months old at the time of the offending. Ms Miles has an older daughter who is now five but was only about three at the time of the offending.
73Her older daughter’s father was unlawfully killed in 2019. At that time Ms Miles became the widow, bereaved, sole parent of an infant in horrific circumstances.
74At the time of your arrest you had been together for a period of time. Ms Miles and her children were obviously dependent on you. She was sleep deprived, more or less running on empty. Her reaction to your arrest and understandable fear that she was going to lose her children because of your conduct was very difficult to watch on the BWC footage. It also makes your conduct in palming off a substantial amount of methamphetamine to her all the more egregious. This doesn’t reflect well on your character, but it’s not the only matter I take into account when assessing that matter. Your positive conduct on bail is worth no small degree of weight in my view.
75Despite her difficulties and trauma, Ms Miles has made a real go of her life. It is a credit to her but it is also to your benefit that she is strong, resilient and supportive.
76I queried how she would survive with your absence for a significant period of time. It appears that she was able to survive during your time on remand and also your time at the Cottage. It appears that she will be able to do so again in the future. That doesn’t mean that your time in custody will be easy.
77You appear to have extracted yourself from undesirable other influences in the community and will inevitably be worried about the fate of your partner and children. I note that your mother passed away in the most horrific and traumatic circumstances in 2014. You were in custody at that time but were allowed to go to her funeral. So the notion that tragedy may strike your loved ones in some way while you are imprisoned is not foreign to you. I expect this is source of concern and anguish.
78I have had due regard to the references of Mr Jeffries,[30] who suffers from cancer and gives an insight into the kind of man you can be when you put your mind to it — kind, generous, supportive and reliable.
[30]Exhibit 2 – Reference of David Jeffries dated 15 January 2023.
79That you secured employment, as attested to by Mr Storey,[31] is very much to your credit. Though not working full time, you were a valuable member of that a property services business as a general hand / trade assistant.
[31]Exhibit 5 – Letter of Jason Storey dated 13 January 2023.
80Given your progress over the last two years your prospects (though still very much guarded) are better than one might expect at your age with the prior criminal history I have just recited. You have had the opportunity of employment and engaged in self-reform through Narcotics Anonymous,[32] and not reoffended. These are matters of some significance.
[32]Exhibit 3 – Reference of Harjit Singh, Mr Singh has provided a very heartfelt and frank letter where he appears to be very proud of the progress you have made.
Further observations about the offending
81In terms of the offending Ms Brown didn’t concede that trafficking had become a way in which you supported yourself and your family. I was invited to treat the offending through the lens of your previous prodigious drug use. I was told principally that your motivation for this very serious offending was to ensure a supply of drugs for your own use. Ms Brown accepted that there are other inferences also available to me about your role in the offending.
82Ms Brown was at pains to characterise your offending as lacking in sophistication, but it is hard to truly come to that conclusion. It’s hard to ignore that you had secured a safe via which you transported a significant amount of illegal product worth a substantial amount of money. You were trafficking in multiple substances for a day. Reference was made to your offending in full view of police officers. That might answer the description stupid or brazen or oblivious. I simply don’t know. You are certainly aware enough of your predicament to attempt to off load a significant number of illicit drugs to your partner and the mother of your child.
83The rather cavalier attitude to driving could be explicable in any number of reasons not least of all the fact that you are substance affected at the time you did.
84There is a sense of you hiding in plain sight by driving in a fairly modest motor vehicle down a suburban street with three times the commercial quantity of methamphetamine in a safe in the back seat along with a considerable amount of GHB.
85I simply don’t have enough information to make any conclusions about sophistication. Likewise, I’m precluded from making any finding about your role in any hierarchy given there is no further investigation into your trafficking activities. There were no telephone intercepts, no identified buyers and no identified co‑accused.
86Ms Brown accepted (as she must) that drug offences represent a substantial social evil that causes significant harm to the community. The primary sentencing purposes will necessarily include general and specific deterrence, just punishment and denunciation.
87She invited me to assess the gravity of this offending in accordance with her submissions at paragraphs 12 and 13 of her written submissions,[33] which I repeat in full here:
[33]Exhibit 1 – Outline of Submissions for Accused dated 23 January 2023.
[12]In assessing the objective seriousness of drug offending generally, the following factors are relevant:
(a) The quantity of the drugs involved;
(b)The offender’s role in the hierarchy (where it can be determined);
(c) Any financial gain or motive;
(d) The knowledge or belief of the offender;
(e) The size and sophistication of the operation;
(f) The duration of the offending;
(g) Any assistance to authorities;
(h) The offender’s criminal history; and
(i) The offender’s prospects of rehabilitation.
[13]In assessing the objective gravity of this offending, the following points are noted:
(a)Due to the circumstances of the discovery of the offending, there is a paucity of evidence that could assist the court in determining the accused’s role in any hierarchy;
(b)The accused falls to be sentenced as a person who was offending on a single day, and there is no proper evidentiary basis to make a finding that he was in possession of the drugs in the lockbox for any particular period of time;
(c)Whilst the accused has pleaded guilty to dealing in proceeds of crime for the cash found in his wallet, the level of enrichment that can be attributed to this offending is relatively modest. Furthermore, the ice pipes and the fact he tested positive to methamphetamine at the time of intercept are consistent with his own personal use, leaving open the inference his trafficking was to fund his own drug use;
(d)The accused’s interactions with police and presentation during the intercept are entirely indicative of a person who lacks sophistication or lacks the capacity for extensive planning and organisation.
88Ms Brown accepted that the default position for a finding of guilt on trafficking commercial quantity of methamphetamine was that you expected financial reward. I find that is the case here and find it difficult to accept that the only motivation for your involvement in serious offending was to ensure simply enough product for you to use.[34]
[34]I refer back to Ms Brown’s submissions at [13](c) when considering this matter.
89I note there is number of other preprepared smaller batches for sale that you pleaded guilty to the possession of. You bear the onus of circumstances of satisfying me that it was not for a purpose related to trafficking. Ms Brown did not advance an argument that the other batches were not for sale.[35]
[35]Again I re-iterate that the term of imprisonment for this additional amount of methamphetamine is effectively subsumed in the penalty imposed on the commercial trafficking charge.
90Your driving history is spectacularly bad. I am presented with another example of you driving unlicenced, and substance affected.
Matters of Principle
Trafficking
91Plainly, trafficking in a commercial quantity of drugs is a serious offence. The maximum penalty available of 25 years' imprisonment, and that alone is evidence of the seriousness with which Parliament views this offence and provides a yardstick against which this sentence to be imposed should be considered.[36] Relevantly, the charge is a Category 2 offence.
[36]Markarian v The Queen (2005) 228 CLR 357, 372.
92Trafficking in drugs is an inherently pernicious trade. Drug offences are a substantial societal evil. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent. General deterrence, as the dominant purpose for which sentence is to be imposed, has been emphasised by sentences in many Australian jurisdictions. That much is inarguable.
93In this State, there is a quantity based sentencing regime according to weight of the substance (and not the perceived hierarchy of harm)[37] which informs the maximum penalty.
[37]R vPidoto & O’Dea (2006) 14 VR 269.
94Weight or quantity alone is not the only metric to measure the gravity of the offence. Other factors relevant to an assessment of the gravity of a particular trafficking include an offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement.
95The amount of Commercial Quantity found in the black lock safe is 179.65g, which is about 3.5 times the Scheduled commercial quantity. Whilst not determinative of the assessment of the objective gravity of the offending, the amount trafficked is of importance all ‘things being equal, the greater the quantity trafficked the more serious the offence’.[38]
[38]Gregory (a pseudonym) v The Queen [2017] VSCA 151 at [23]–[24].
96You have also pleaded guilty to trafficking a significant amount of 1,4-Butanediol (1408.7g).[39] The Court explained in Mitchell v The Queen,[40] separate acts of trafficking — or possession — of different drugs must be treated as involving separate criminality, the seriousness of which much be assessed separately for each drug.
[39]Traffickable quantity is 50 grams.
[40][2016] VSCA 321, [27].
97The offending you were involved in was clearly very serious even if it is confined to a single day. You had apparently purchased a safe. You stored other drugs at your home in another safe. You transported those drugs in a safe that you claimed wasn’t yours and you had no access to. There were indicia of trafficking in the form of smaller bags in the car and on your person. There was also evidence of your own use of ice. There was a high degree of security surrounding the transportation of the drugs and it was a large amount of 1.4-Butanediol in your possession for the purpose of sale.
98The potential value of the drug ranged depending on how it was to be sold, which on any view of it, was immense. That such profit was not realised by others, and the drugs were seized is not of much moment.
99Once detected you were not honest about the contents of the safe. You shamefully tried to pass off drugs to your then partner in a way that may have unfairly implicated her.
100The community has a justifiable expectation that such offending will be treated very seriously. The consequences for engaging in such serious criminality must be such that any like-minded members of the community who are contemplating behaving like this, or in any similar fashion, will pause to consider whether the potential rewards are worth the risk of being caught and being punished.
101By appropriately punishing such conduct, the Court is, on behalf of the community, seeking to denounce it and vindicate the values of that community. Your counsel conceded that general deterrence in cases of this nature carries particular significance in the exercise of the sentencing discretion, though asserted that general deterrence must be appropriately tempered by the particular circumstances of the present case and the matters in mitigation. You are unquestionably a suitable vehicle through which to deter others and it assumes a prominence in the sentence that I am about to impose.
102Protection of community is relevant due to the harm trafficking in drugs of dependence can cause to the community. This needs to be viewed more widely to acknowledge that the community can be protected by the reform of an individual.
103Charge 1 is a Category 2 offence pursuant to s 5(2H) of the Sentencing Act 1991, meaning the Court must make a custodial order (other than a sentence of imprisonment imposed in addition to making a community correction order) unless certain circumstances exist. The type of circumstances contemplated by the Sentencing Act 1991, do not apply here and your counsel did not argue to the contrary.
104Protection of the community cannot be ignored, though there are other ways to protect the community in your case than simply removing you from the community for a truly significant period of time.
Current sentencing practices and comparable cases
105Comparable cases may provide guidance as to the identification and application of relevant sentencing principles. Analysis of such cases may also yield a range of sentences against which to examine a proposed sentence, however, current sentencing practices are only one factor, and not the controlling factor, in the fixing of a just sentence.
106I was taken to Court of Appeal sentences and one sentence of this Court by Counsel for the Director, all of which involved pleas of guilty to trafficking in a commercial quantity, that it was said may be comparable to yours.[41]
[41]Mr Petric didn’t say that the comparative cases were exactly like for like but simply illustrative of single occasion trafficking.
107Any analysis of the facts in those other matters confirms just how difficult it is to engage in comparative exercises when sentencing, and these cases have not been treated as representing a ceiling beyond which I cannot exceed, or alternatively used in some kind of de facto parity exercise. The following the cases all involved a plea of guilty to the principal charge of trafficking in a commercial quantity:
(a) Vincent v The Queen,[42] a case where a Total Effective Sentence (TES) of 7 years with NPP of 4 ½ years was imposed.
(b) Roxburgh v The Queen,[43] where a TES 4 years 9 months with NPP of 3 ½ years was set.
(c) Polos v the King,[44] where a TES of 3 years 9 months was imposed with a NPP 2 years of 9 months set.
(d) DPP v Sayah,[45] where a TES 6 years with NPP of 3 ½ years was imposed.
[42][2021] VSCA 99.
[43][2021] VSCA 181.
[44][2022] VSCA 258.
[45][2020] VCC 1469. Ms Brown says the case of Sayah is seeking significantly graver in your example given the quantities involved in the potential use of a firearm.
Plea of guilty
108It is well established following the decision of Worboyes v The Queen,[46] that a plea of guilty during the pandemic will have a great utilitarian benefit than in ordinary times and it must amount to a palpable amelioration of sentence. Your plea was entered on day one of the trial and reduced the scope and duration of same. In my view your very late plea still has some additional utilitarian value of the kind referred to in Worboyes that will be reflected in the sentence I impose. I stress it was never suggested that such a plea was accompanied by remorse of any kind.
[46][2021] VSCA 169 (‘Worboyes’).
COVID-19 and conditions in custody
109You spent around five months in custody before being bailed. It is well-known that the conditions in custody have been particularly onerous during the pandemic. These conditions have remained ongoing through your remand period. Prisoners have endured matters of the following kind: very few visits, unable to attend the gym or exercise, a number of lockdowns, restrictions on courses, restrictions on phone calls, restrictions on counselling support and a general increased level of anxiety and deepened depression that is experienced by many members of the prison population. I am aware that this is the environment I have returned you to. I will temper the sentence accordingly.
Delay
110The offending in this case occurred in February 2021. Whilst it is not submitted that the delay is inordinate or attributable to any fault of the prosecution, the fact remains that over two years have passed since the offending behaviour and the resolution of the matter by the jury.
111Delay is particularly relevant where a person has made changes to their life, particularly where they have started to address the issues that contributed to the offending behaviour. It was submitted that this is a case where you commenced the process of addressing such behaviours and I accept that this is so. You gained employment during your time on bail and resided at the Cottage for four months. I will take the latter into account in the ways I have been asked to — I will moderate the sentence I impose on account of that time in rehabilitation where you were not free to move and behave as you might like to, and I will use it as a tangible example of your desire and capacity to reform.
Prospects for reform
112It is with some caution, but also optimism that I find even at your age, you still have some prospects to reform. That impression if formed principally because of your conduct on bail for an extended period of time. I acknowledge that given your history, specific deterrence must play a role in the sentence I impose, as does protection of the community.
113I conclude that I can further both sentencing objectives by imposing a realistic non‑parole period to be released under supervision for a meaningful period of time. I deal with this again in more detail in a moment.
Totality
114I am mindful of the significance in this case of the application of that principle which requires me when sentencing you for multiple offences to ensure that the aggregate term I impose is a just and appropriate measure of the total criminality involved.
115There must be an appropriate relatively between the totality of all criminality and the totality of the effective length of the sentence. This is true when I consider the interaction between charges on the indictment (trafficking more than one substance and possessing profits of your criminality). I have determined an appropriate length for each charge, taking the applicable sentencing considerations into account and designated the highest term of the base sentence, then I determined the extent to which there should be any cumulation regarding each count and finally stood back and considered in light of totality what an appropriate sentence ought to be.
Parole
116I will fix a period of parole for you. It is obvious you require supervision, monitoring and assistance. In affixing appropriate sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
117The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Due to the constellation of mitigatory factors in your case, I have concluded it is appropriate to allow for a longer than usual parole component to your sentence. Accordingly, the non-parole period, that is, the period of imprisonment to be served before which you become eligible for parole, will be shorter than usual to appropriately take into account the number of mitigatory factors in this case and to facilitate your reintegration into the community.
Sentence
118After having carefully considered, balanced and weighed all of the relevant sentencing considerations, I have decided to convict you on each charge and sentence you as follows:
# Charge Sentence Degree of cumulation on base on each other 1 Trafficking in a Drug of Dependence – Commercial Quantity (Methylamphetamine) 3 years 10 months Base
2 Trafficking in a Drug of Dependence (1,4-Butanediol) 2 years 2 months 8 months 4 Possess Methamphetamine 18 months Concurrent 5 Knowingly Dealing with the proceeds of Crime 8 months 3 months RSO 8 Use methamphetamine $1000 fine part of aggregate $1000 RSO 10 Fail Oral Fluid Test within 3 hours of Driving $1000 fine part of aggregate
2 years disqualification$1000 RSO 11 Exceed speed limit by less than 35kmph $1000 fine
Part of aggregate$1000 RSO 12 Unlicensed Driving 3 months
2 years disqualification1 month ORDERS
TES 4 years 10 months
NPP 3 years 2 months
$1000 fine aggregate
Licence disqualified for 2 years to commence on date of release on parolePSD
119You were arrested on 2 February 2021. You were bailed on 30 June 2021, resulting in 149 days pre-sentence detention including the day of release, then an additional period of time after the plea. I declare 262 days PSD as having already been served.
Section 6AAA
120In this case, the s 6AAA declaration pursuant to the Sentencing Act 1991 (Vic), is difficult, given not all charges were pleaded guilty to and there is a real degree of artificiality in declaring the discount given the principal charge is so serious and attracts the base sentence of 3 years and 10 months upon conviction after trial.
121For whatever utility it may possess, I give the following indication, but for your plea of guilty to charges 2,4, 5 and RSO 12, I would have sentenced you to a total effective sentence of 4 years on those charges with a non-parole period of 2 years 9 months.
Licence
122I have determined that there is a high degree of need to protect the community from your driving whilst substance affected, or otherwise deter you from driving without a licence. No legitimate reason was proffered for the driving here, other than to offend. At risk of repetition, your driving history is appalling. I have calibrated the disqualification period so as not to unduly hamper your prospects but regrettably the time you are to be disqualified will extend into the time you are on parole. That is unavoidable. I have set the 2-year period of disqualification to commence at the time of your release.[47]
[47]I have had regard to the principles in R v Novakovic(2007) 17 VR 21 and Koukoulis v The Queen [2020] VSCA 19 when arriving at this period.
Ancillary Orders
123I grant the orders sought by the prosecution, namely disposal and forfeiture.
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