Director of Public Prosecutions v McArthur

[2020] VCC 376

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02227
CR 18-02231
CR 18-02230
CR 18-02229

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAWRENCE McARTHUR
DANNY VASSALLO
VICTORIA O'NEIL
DENNIS VASSALLO

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2020 (Plea – O’Neil, McArthur, Danny Vassallo) 16 March 2020 (Plea – Dennis Vassallo)
DATE OF SENTENCE:	1 April 2020 7 April 2020 (Dennis Vassallo)
CASE MAY BE CITED AS:	DPP v McArthur & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 376

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  CRIMINAL LAW – Pleas of Guilty – Possess substance, material, document or equipment for trafficking in a drug of dependence – Possess drug of dependence – Separate indictments – Operation Hacksaw – Large order of N-isopropylbenzylamine (‘ISO’) – Accused were identified via telephone intercepts – Intention of trafficking in a drug of dependence namely methylamphetamine

Legislation Cited: s71A(1)Drugs Poisons and Controlled Substances Act 1981 – Sentencing Act 1991 (Vic)

Cases Cited:Marks v The Queen [2019] VSCA 253 - Vyater v The Queen [2020] VSCA 32 - Markovic v The Queen [2010] VSCA 105

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hevey with Ms E. James	Office of Public Prosecutions
For Accused McArthur	Mr G. Casement	Milides Lawyers
For Accused Danny Vassallo For Accused Dennis Vassallo	Mr S. Tovey Mr J. Miller	Stary Norton Halphen C Marshall & Associates
For Accused O'Neil	Ms E. Clark	Slades & Parsons Solicitors

HIS HONOUR:

1This matter began as a directions hearing on 9 December 2019 with a further mention on 19 December.  The matter was set down for a pre-trial hearing on 3 February of this year.

2Danny Vassallo had in fact been arraigned on 15 November before Judge Marich and pleaded guilty in indictment No.J10382733 to two offences; one under s.71A(1) of the Drugs, Poisons and Controlled Substances Act; and a further possession charge under 73(1).

3Ultimately on 6 February 2020, Dennis Vassallo, Lawrence McArthur and Victoria O'Neil pleaded guilty to one charge of possession of substances, material and documents or equipment for trafficking in a drug of dependence pursuant to s.71A(1) of the Drugs, Poisons and Controlled Substances Act.

4The relevant indictments insofar as Mr Dennis Vassallo was concerned is J10393596; in regard to Mr McArthur, J10382722; and in regard to Ms O'Neil, J10393803.

5The substance to which that charge related is known as ISO, it is isopropylbenzylamine.  The maximum penalty prescribed for such offence under 71A(1) is one of ten years which indicates the seriousness of the crime and the view held by Parliament as to such.

6The pleas of Mr McArthur, Ms O'Neil and Mr Danny Vassallo were conducted on 11th day of February 2020.  The plea of Mr Dennis Vassallo was conducted on 16th day of March 2020.

7Mr Dennis Vassallo was born on 2 September 1963 and is now aged 56.  The offending involved took place while he was 54 to 55.  He is a disability pensioner.  Mr Miller appeared for Mr Dennis Vassallo.

8Mr Lawrence McArthur was born on 7 February 1947.  He is now aged 73 and was 70 at the time of these offences.  He is an equine veterinarian and Mr Casement appeared on his behalf.

9Mr Danny Vassallo was born on 2 April 1989.  He is now 30 and was 27 at the time of this offending.  Mr Tovey appeared on his behalf.

10Ms Victoria O'Neil was born on 25 November 1979.  She is now aged 40 and was of the age between 38 and 39 at the time of this offending. Ms Clark appeared on her behalf.

11The prosecution tendered the prosecution opening on plea, Exhibit A, dated 11th day of February 2020, and insofar as Danny Vassallo was concerned, Exhibit VA.  All counsel accepted the facts as set out therein as the basis upon which I am to sentence their clients.

12Mr Miller was at pains to submit the role of Dennis Vassallo was effectively an equal partnership between he, Mr McArthur and unknown third parties.  The proposition put to me was that money and instructions, insofar as this enterprise was concerned, were coming from more sophisticated criminals in South Australia.

13In that regard after consideration, I accept the submission of the prosecution that I should not accept such a submission of Mr Miller in regard to the role of Dennis Vassallo.  Throughout the recorded and detailed conversations, there is no indication of anyone having control or influence beyond that of Mr Dennis Vassallo and Mr McArthur, despite Mr Dennis Vassallo apparently receiving payments from others and postulating on 25 October 2017 with his son as to the financing of an ongoing methamphetamine organisation supplier of methamphetamine with other parties.

14Mr Dennis Vassallo, according to his counsel, could not give any evidence in regard to this matter despite being invited and/or challenged to do so by the Crown.  It was put by Mr Miller that was for obvious reasons.  As I have said, I reject the proposition as to the suggested role put by Mr Miller as to Dennis Vassallo.

15The prosecution submitted the penalties generally in regard to this charge, were at the bottom range of drug penalties.  Technically there is one lower, under s.73(c) where possession of a drug of dependence for purpose relatively for trafficking warrants a five-year sentence.

16What is important is that the scientific reality was that ISO could never have been successfully converted to methamphetamine, albeit the purported attempts to convert ISO to methamphetamine and the excitement engendered in the calls around the date of 31 October 2017 when Ms O'Neil suggested a contact 'thinks he can make it straight from one to another like you originally wanted'.  Equally, the selling or providing the substance as a cutting agent is not such that it can form part of this crime, for which I am to pass sentence

17Dennis Vassallo as a response to Ms O’Neil’s news suggested giving such contact free ISO to develop the process further. Subsequently on 17 November 2017, as detailed in paragraphs 23 to 25 of the opening, in what his son described as a 'game changer', discussion ensued as to the distribution of methamphetamine.  Finally, Dennis Vassallo on 1 February 2018 suggested (see paragraph 28), that it 'can be done'.

18However, despite such excitement, the reality, as I understand it, was that it was all just a fond folly.  As to this, Mr Casement submitted that the crime was 'forlorn and doomed to failure'.

19As the Court of Appeal pointed out, in a quite different context, in Marks v The Queen [2019] VSCA 253, the fact of being unable to achieve the harm contemplated must mitigate a sentence. That is this offence would have to be assessed as far more grave had the so-called chemical conversion been possible (see paragraph 54 of such decision).

20By such comments, I do not want in any way to undermine the excellent job done by the informants and the police force generally here.  It was of course vital that such surveillance was undertaken.  Clearly, there was a real intention by all the parties here to produce methamphetamine to be marketed to the public, albeit forelorn.

21Indeed, Mr Prosecutor, the informant and indeed all of the investigators, if one looks at the large list of witnesses both from South Australia and Victoria, in particular the unnamed operatives, on behalf of the community should be congratulated for Operation Hacksaw for the work that they did, I would ask you to convey those views from the Court.

22MR HEVEY:  Thank you, Your Honour.

23HIS HONOUR:  Again looking at the seriousness of this crime. In a more recent case reported this week by way of comparison, I refer to the comments of the Court of Appeal in Vyater v The Queen [2020] VSCA 32, [105] [120] as to the seriousness of the use in that instance of a known precursor which was capable of producing some five to six times it’s volume of methamphetamine.

24Albeit those circumstances have to be accepted as mitigating the sentence, such course does not relieve each accused of responsibility for the crime or the intent to traffick in a drug of dependence, which is the integral element of this crime.

25Operation Hacksaw began with a notification to authorities of the purchase by Mr McArthur, for the sum of $9,600, of the ISO initially in a small quantity but ultimately in a larger quantity. Such being delivered to his premises in two batches, one on the 24th day of April 2017 and a larger batch on 17th day of July 2017.  Mr McArthur was able to make such purchases because of his profession and the fact that he conducted an equine practice.  However, it appears that the volume of such purchase brought the matter to the attention of the authorities.

26Thereafter, as disclosed by surveillance and monitored conversations, which I understand involve some 22,000 calls and nine devices which produced some 475 evidentiary calls which had been utilised by the prosecution in this State.

27The activities and intention of each of the accused were able to be ascertained from such calls, and are as described by the prosecution as set out in paragraph 4 of Exhibit A of the prosecution opening.

28On 8 February 2018, the police finally decided the whole scheme was never going to work and warrants were executed.  On that date, the specific equipment and chemical notes involved, which came about from the association of Dennis Vassallo and Mr McArthur, and been stored at either of the premises were seized. In that regard the document tendered today referred to Exhibit B, adds to the materials set out in Appendix 1 of Exhibit A.

29As to the specific role of each of the accused such is detailed at paragraph 15 of the prosecution statement.  I find that in regard to each, such summary is appropriate upon the circumstances, as I am able to perceive, I am satisfied beyond reasonable doubt that such are the roles as rehearsed by the prosecution and I take such into account.  In such regard, it is necessary for me to read in such roles.

30If I read from paragraph 15, this is of Exhibit A, not VA, the roles undertaken by each person included; (a), Dennis Vassallo coordinated the other syndicate members, namely Danny Vassallo, Victoria O'Neil and Lawrence McArthur. He arranged payments to McArthur for the ISO purchase, for example, $9,600 paid in cash, $9,000 in bank transfers by Victoria O'Neil and persuaded his son, Danny Vassallo, to invest $12,000 cash in the plan.  Dennis Vassallo arranged for mobile phone services to be registered to other names for communication between the co-accused.  He was vigilant, used coded terms, public phones or separate phone services when discussing the ISO.  He liaised with potential buyers (and partners) across both South Australia and Victoria, including those sourced by Ms O'Neil.

31(b), Lawrence McArthur has been an associate of Dennis Vassallo since the 90s.  McArthur used his veterinary registration to source the ISO as well as other chemicals, scientific glassware and equipment located at his property at the time of his arrest which was being used to convert the ISO into a crystallised form.  McArthur received several large payments totalling $30,600 from Danny Vassallo, O'Neil and Dennis Vassallo.  Intercepted calls indicate that McArthur had knowledge of drug manufacturing techniques as well as the chemicals and equipment required to convert the ISO into a crystallised form.  McArthur agreed for his property to be the main location for storing, processing and supplying others with the ISO.

32(c), Victoria O'Neil helped source potential buyers in South Australia.  She spoke mostly with Dennis Vassallo but travelled to Victoria and saw Danny Vassallo.  They made two bank transfers totalling $9,000 to McArthur to help fund the plan.  O'Neil shared samples of ISO, experimented with techniques for crystallising ISO, arranged meetings between Dennis Vassallo and others in South Australia. She was a contact point for local buyers, who worked with ISO to prepare a mixture of ISO methamphetamine and to try to convert ISO into methamphetamine.

33Finally, Danny Vassallo, paragraph (d) of paragraph 15, is the adult son of Dennis Vassallo.  He invested money in the plan, $12,000 in cash, to McArthur which he sourced from other potential buyers and friends and liaised with Victoria O'Neil and Lawrence McArthur.  Danny Vassallo helped transport chemicals, in a barrel and an esky, to be collected by other parties.  Dennis Vassallo and Danny Vassallo discussed the plan to convert ISO directly into methamphetamine and Dennis Vassallo suggested that Danny Vassallo would eventually take it over as a large-scale enterprise.

34Exhibit VA essentially sets out in identical terms Dennis’s role.

35Progress from May 2017 to 8 February 2018 is detailed precisely in paragraph 17 through to 26 and/or 28 in Exhibit A, but essentially expands the performance of the roles as I have detailed and read out.

36As I said, the crime came to an end when the police executed the warrant on 8 February 2018.

37Coming then to Mr Dennis Vassallo, I have described his role in my findings, that he bears the highest culpability for this crime.  He has priors, though not numerous for a man of 56.  Significantly though he has two priors for trafficking, albeit aged, one in 1986, but more relevantly one in 1996 where before this Court, that is 24 years ago, he was sentenced to 20 months' gaol for trafficking, with 10 months of that sentence being suspended.

38He has served PSD of 313 days.  The prosecution in submission submitted that the only proper sentence, in all the circumstances, in regard to
Mr Dennis Vassallo was a further term of immediate imprisonment. In response to the submission of Mr Miller as to a straight sentence, the prosecutor submitted that sentence should be a sentence which brings with it a non-parole period. 

39In his plea, Mr Miller tendered Exhibit V1, his written plea and spoke to such.  He also tendered Exhibits V2 through to V8 which I will for the record identify, V2 being a general practitioner's letter, Dr Belinda Coyte as to Mr Vassallo, V3 being Department of Education South Australia approval of exemption for Samuel for home and schooling, V4 being a letter from Dr Knight in regard to Mr Vassallo's wife gynaecological issues,  V5 being the psychological assessment of Samuel by Adelaide paediatrics.  V6 being the letter from Mr Rasmussen of Gospee Life.  V7 being the letter from Helen Glanville, Second Chances, South Australia.  V8 being the letter from Mr Vassallo's wife and V9, as I have described this morning, the further submissions as to COVID-19 and its impact upon Mr Dennis Vassallo in regard to any gaol sentence and further V10 which is the letter from the paediatriction insofar as Samuel Vassallo is concerned.

40Mr Miller called lead pastor, Luke Rasmussen to give character evidence.  His letter is Exhibit V6 and he spoke in similar terms to the strong support in that letter.  Insofar as V1, the circumstances of Mr Vassallo's personal history were set out by Mr Miller in particular at paragraphs 3 to 24. 

41Mr Miller maintained an exceptional hardship argument as to Mr Dennis Vassallo's family and in support called Mrs Marika Vassallo to give evidence and tendered her statement, Exhibit V8 and Exhibits V3, V4 and V5 and ultimately the new letter, Exhibit V10 of the paediatrician. Mr Miller submitted that the circumstances before the court were sufficient to enliven exceptional circumstances as required and described by the Court of Appeal in Markovic v The Queen [2010] VSCA 105.

42The basis of such submission was as follows.  Samuel the 14-year-old son of Mr Vassallo's relationship was tested on 27 February and 5 March by psychologist Sara Brown, Exhibit V5.  As a result of testing and the histories provided by both his teacher to that date and his parents, he was seen to have elevated testing scores for, “likely” attention deficit hyperactivity disorder and was also in the high-risk range for oppositional defiant behaviours.

43It is to be noted that to that date, despite the issues created within the family and at schools, Samuel had not had like assessments. Nor, I am told, has he ever had any psychological or psychiatric treatment.  His mother gave evidence that he was difficult to control, due to his size and disposition.  She said that if her husband was jailed, she feared for her other children as Samuel is loud and aggressive and violent.  That in her view she is in need of the assistance that her husband provides by way of the constant supervision of her son within the home, in particular because of the house schooling.

44Insofar as such submission was concerned, as I said, at Exhibit V10, subsequent to the plea was tendered the statement of the paediatrician,
Dr Shulka, which in a letter in short form essentially accepted the diagnosis made by Sara Brown and confirmed to the Court that Samuel had been started now on some trial medications.  Also in support of this application Pastor Rasmussen was called who spoke of the difficulties encountered at the school by Samuel, and of his awareness, as the family pastor, of the difficulty Samuel creates at home.

45Mrs Vassallo spoke of the difficulty in the 10 months that her husband was on remand, that it was very difficult for all the family. She further spoke of Sam's condition and the circumstances which have led to him being home schooled by Mr Vassallo, as set out in Exhibit VE.  She said to the Court that if
Mr Vassallo was jailed, and was therefore not able to be home, especially if the schools are closed by the current crisis, she would be unable to cope and would encounter the very particular difficulties that she experienced in the remand period last time, when Mr Vassallo was in gaol.

46Mrs Vassallo also has her own health concerns as is detailed insofar as her gynaecological issues and a need for treatment, set out at V4.  No doubt as Mrs Vassallo says in her statement, Exhibit V8, it was indeed traumatic for her and all the family while Mr Vassallo was in remand.  I indeed understand the difficulties with Samuel, which has been elucidated by the material before me.  However, as I said, until he began on medications he has no specific treatment to date and albeit the family has difficulty in coping, Mrs Vassallo is employed and was able to cope during the remand.

47As to the impact of the current Coronavirus situation, all families will no doubt in Australia experience the very same issues, however, I accept the extra burdens that Mrs Vassallo would have to undertake with Sam.  Having given the matter close attention, I have concluded that the circumstances concerning Mrs Vassallo, the family and Sam are not sufficient to amount to exceptional circumstances as required by Markovic.  In saying that I of course, humanely understand and accept the issues that a difficult child such as Sam can create within the family.

48Mr Miller also put hardship submissions in two other ways, both of which I take into account in the sentence.  Firstly, Mr Vassallo, knowing of the hardships, that I have just spoken about that relate to his family and his partner, and aware of the impact of his period on remand will find it difficult while being in gaol from the fact that he is aware of the suffering that he has caused to his partner and family.  I accept that and I take that into account, and of course so he should.

49In addition, his own medical condition as set out in Exhibit V2, especially his rheumatoid arthritis and high antibody count, make him susceptible, perhaps more susceptible from others, to the virus itself.  I accept that such in gaol will create for him an increased risk, and of course make his service of gaol more stressful.  In addition to that, I also take into account the additional material, Exhibit V9, tendered by Mr Miller, the reality that the current regime in prison will mean that there will be further restrictions such as lockdowns, that indeed Mr Vassallo will have to be part of a 14-day lockdown on current advice and that there would be particular difficulties for him by way of the fact that he will be denied family visits in the current circumstances.  And as I say, insofar as Mr Vassallo's is concerned, I take both of those factors of hardship into account.

50Insofar as other matters going to mitigation, Mr Miller stressed the plea of guilty and that such plea was entered without the impact of the “can say”, statements of Mr McArthur.  He submitted that insofar as the amended indictment, such plea was entered at the earliest time possible and I accept both of those propositions and that a discount is appropriate.  It is, however, appropriate to say that in considering those circumstances, while I accept that the “can say” documents of McArthur cannot be taken into account, the plea from his son in my view was a large factor in his plea.

51However, I accept that his plea is an acceptance of responsibility and a demonstration of his remorse.  I accept that no matter what his intent was as to financial enrichment, there is no evidence of actual enrichment.  I accept that he comes before this Court regretting the influence he has had on his son, which led his son to criminality and indeed on Ms O'Neill. 

52As I said during the plea, in particular as a result of his degree of culpability, the circumstances in my view are not appropriate for a community correction order.

53Mr Miller's alternative submission was that a straight term should be imposed without any non-parole period. As I said the prosecution submitted that a non-parole period should be imposed, and the impact therefore of s.11(1)(b) of the Sentencing Act for a mandatory non-parole period to be imposed postulates a sentence over two years.

54Given the seriousness of the crime, the need for general and specific deterrence, especially given Mr Vassallo's history, albeit dated, and the need for punishment when balanced against all of the factors that have been put to me in this plea by way of mitigation by Mr Miller, I have determined that Mr Dennis Vassallo must serve a further period of immediate imprisonment, as submitted by the prosecutor.

55In the particular circumstances of this case, as put by Mr Miller, I am prepared to pass a straight sentence. 

56If you would stand up, Mr Vassallo.  For this crime, Mr Vassallo, you will be sentenced to a period of imprisonment of 18 months.  Pursuant to s.18, I declare that 313 days previously served on remand are to be deemed as service of this sentence and a declaration to that effect is to be recorded in the records of this court. 

57Pursuant to s.6AAA, I am required to indicate to you what the sentence would have been had you not pleaded guilty.  This assessment is somewhat complicated by the fact that I have accepted Mr Miller's plea for a straight sentence, however, doing as best I can, had you not pleaded guilty, the sentence imposed on you would not have been a straight sentence of 18 months but a sentence of three years, with a minimum period to be served before being eligible for parole of 24 months.

58Insofar as the disposal and forfeiture orders I have signed those and I do not think there are any other matters I have to attend to, Mr Prosecutor is there?

59MR HEVEY:  No, thank you, Your Honour.

60HIS HONOUR:  Mr Miller, any issues?

61MR MILLER:  Well, just the presentence detention, Your Honour.  I did not jump up at the start.

62HIS HONOUR:  Am I wrong on the 313 days?

63MR MILLER:  I think it is 314 because he was remanded ‑ ‑ ‑

64MR HEVEY:  That is right.

65MR MILLER:  ‑ ‑ ‑ and then the day that he got bailed ‑ ‑ ‑

66HIS HONOUR:  Are you happy with that, Mr Prosecutor?­

67MR HEVEY:  Yes, I am, Your Honour.

68MR MILLER:  Thank you.

69HIS HONOUR:  The declaration will be 314 days.  Yes, Mr Vassallo can be taken away. 

70Coming to Mr McArthur,  as I have indicated, albeit the purchaser of the ISO, I assess his culpability at a lesser level than Mr Dennis Vassallo.  In saying that, their longstanding relationship apparently had gone back to the 90s and may well have been connected to racing.  That clearly potential financial gain was very much behind this whole scheme.  There is no evidence before me as to why a veterinarian, with no priors, would enter into such a scheme but for financial gain.

71Apparently, initially there was some plan between him and Dennis Vassallo to produce some cannabinoid oil which Mr Vassallo had proposed, but then the suggestion to utilise ISO to produce the methamphetamine had come from Mr Dennis Vassallo.  Ultimately, McArthur received, $30,600 for the ISO that he had purchased.

72Mr McArthur agreed to arrange for small amounts of such product to be released for experiments arranged by Dennis Vassallo, to be used for sales as a proposed cutting agent and particpated into discussions as to the potential and capability of the use of ISO for the manufacture of methamphetamine.

73It would appear clear (see paragraph 25 of the prosecution opening), that it was certainly not the view of Dennis Vassallo that Mr McArthur would be included in any partnership in regard to the ongoing sale of any methamphetamine produced.  His role appears to be limited to buying the product, storing it at his premises, being involved in the discussions and encouraging the steps and processes taken to produce methamphetamine, albeit that there was a substantial amount of scientific equipment obtained which was stored at his premises, but such was never used.

74As I say, Mr McArthur comes before this Court without any priors.  He has served pre-sentence detention in the sum of 378 days, Mr Prosecutor?

75MR HEVEY:  Thank you, Your Honour.

76HIS HONOUR:  As to the two “can-say” statements, which he made prior to his plea, I find that they are particularly valuable.  They provided, as detailed by the prosecution, evidence which assisted the prosecution to enable an understanding of coded terms and what might not have been able to be fully understood of conversations between the parties.  Those statements provided the background to this enterprise and, in particular, clarified the role of Mr Dennis Vassallo.

77Mr Hevey in his submissions acknowledged the value of such statements.  Apparently, however, it is accepted that those statements, given the timing, had no influence on Mr Dennis Vassallo ultimately pleading.  However, such fact does not detract from the importance of such statements.  They became part of a notice of additional evidence served and, as I say, they warrant an appropriate discount, which was not disputed by Mr Hevey.

78In the plea, Mr Casement tendered Exhibit M1, his submissions as to penalty and spoke to them.  The personal circumstances of Mr McArthur were set out at, in particular, paragraph 9.

79Two personal references were tendered; one from Mr Phillips at M2 and Ms Scott at M3.  Both talked to his character, they are of some strength and talk of the particular impact on his life since losing his licence to practice his profession.  They also talk of the losses suffered due to pilfering from his property which occurred while he was on remand.

80The plea made was clearly utilitarian.  Insofar as the particular indictment, it was made at the earliest time possible.  It is warranting of an appropriate discount.

81Mr Casement submitted that the assistance by way of the two “can-say” statements should be seen in addition to the plea as an indication of genuine remorse.  He submitted that there should be a significant discount provided in this sentence by way of the valuable assistance provided by those statements and in particular spoke to the risk associated, given the type of crime that we are dealing with, to his client in making such statements.

82Mr Casement further referred to the considerable time spent by Mr McArthur on remand being 378 days, and the fact that he had been assaulted while he was in remand.

83As I have indicated, Mr Casement relied on the fact that his client had got to his current age with no criminal priors.  He submitted that he had good rehabilitative prospects which I accept, in particular given the references that were detailed.

84Mr Casement also submitted, which is appropriate, that the delay in this matter needs to be taken into account, the loss caused by such delay and the fact that he is now trying to get his life together after the period in remand.

85Mr Casement also referred to the extracurial punishments that has been inflicted by his criminality and that has come about from the fact that he can no longer practice his profession and further the loss of reputation generally in the community brought about by same.

86The community correction report tendered today, Exhibit C, can be seen as positive and I accept that.  In the circumstances, the prosecution accepted that a sentence by way of a combination of gaol and a community correction order was appropriate and within range.  The issue of course, which was left to me, was the degree of imprisonment that is appropriate and whether he should serve any more immediate imprisonment.

87In all of the circumstances, I accept the submission put by Mr Casement on behalf of his client. 

88Despite the seriousness of this crime and the need for a sentence which effects general deterrence, denunciation and punishment, in the particular circumstances put to me by Mr Casement, and further by the further submission tendered today, and in particular by the significant discount appropriate in regard to the assistance provided and the period of remand already served, I do accept in the circumstances of Mr McArthur the submission put, as I have said, of Mr Casement.

89Yes, Mr McArthur, if you would stand please.

90Mr McArthur, you will be convicted of this offence.  You will be ordered to serve a term of imprisonment of 378 days and be placed a two-year community correction order.

91The conditions of that order will be that you will be subject to supervision and subject to programs which ensure that there is no further offending by you.  As I have already indicated, I am sure that that will be so.

92I do not intend to impose a work requirement, Mr Casement.

93Insofar as the imprisonment element of the sentence is concerned, I intend to declare pursuant to s.18 that the 378 days served by Mr McArthur to date have been served as part of this sentence while on remand.

94The effect of that, of course, will be that the imprisonment aspect of this sentence is now served and that the CCO of two years will commence today.

95I might indicate that had Mr McArthur not pleaded guilty, clearly I would not have granted a combined CCO and imprisonment and, doing as best I can, particularly given the importance of the assistance in this case, to comply with Parliament's requirement, I declare under s.6AAA, I would have otherwise imposed a period of imprisonment upon you, Mr McArthur, of two years with a minimum to serve of 16 months.

96Insofar as the community correction order is concerned, given that that was your application, Mr Casement, I assume that you have explained the requirements of such.

97MR CASEMENT:  I have, Your Honour.

98HIS HONOUR:  I have also signed forfeiture and disposal orders in regard to this matter and the community correction order has been prepared and, Mr Casement, I ask you to have your client sign same.

99MR CASEMENT:  I can do that right now.

100Your Honour, my client signed that document.  In his own handwriting, he has written his present address which is the address that we appear to have on the file which was 51 Chandler Road.

101HIS HONOUR:  Mr Casement, given your client was not at all keen to be here, I am more than happy to excuse you and him.

102MR CASEMENT:  Thank you.  If I could be excused.

103HIS HONOUR:  Thank you for your assistance.

104MR CASEMENT:  Thank you.

105HIS HONOUR:  You can come out of the box, Mr McArthur.

106I then come to Danny Vassallo.

107As I said, Mr Vassallo pleaded guilty on the 15th day of November 2019.  His role is as I have rehearsed in paragraph 15(d).

108Mr Vassallo actually invested in the scheme by way of getting together funds of his own and his friends.  He, in addition, transported the ISO, arranged for distribution of same and the payments to Mr McArthur.  He also sourced buyers and investors.

109Mr Vassallo has no priors.  He has been on remand for 20 days.  Insofar as the plea in this matter by Mr Tovey, the Crown accepted that a combined sentence was appropriate, however, given that Mr Vassallo has only served 20 days in remand and the seriousness of the crime, it was put to the Court that a very serious consideration for the Court would be as to whether 20 days was enough in the circumstances.

110Mr Tovey tendered his submission and spoke to such, Exhibit D1.  In Exhibit D2 were tendered four reports of the social worker, Katrin Oliver, dated 21 March 2019, 23 October 2018, 25 June 2019 and 23 January 2020.  The reference to such social worker came about as a result of the bail that Mr Vassallo entered into.

111The program of which the social worker has been responsible is a program which Anglicare provide for drug-dependent persons.  Her reports are of much assistance and involve some 25 sessions with her.  She noted his issues as to dependency, that he has been particularly attentive to such program. That he has been referred for an ASCO screen, that he has reported abstinence from drug taking for some 23 months, for which there is positive support insofar as D6 shows consistent hair screens.

112Exhibit 3 tendered by Mr Tovey was a series of references.  Those references essentially involved family and friends, in particular an impressive reference from his mother, Diane Lucas, all of which I detailed during the plea.

113I was particularly impressed by the report from Mr Levin, his former employer, who gave very strong support to Mr Vassallo.  All the reports confirmed the remorse exhibited and steps in rehabilitation that he had taken since this offending. All of the statements evidenced strong support of his rehabilitation that has been effected to date. In particular I note the very strong support of his now wife of, Keira Vassallo Exhibit D4, that details not only the support that she has provided, but the support of the family insofar as Mr Vassallo was concerned.

114Exhibit D7 was tendered, the report of the psychologist, Mr Staios, dated January 2020.  It is a positive report in regard to Mr Vassallo.  It notes the steps taken as to rehabilitation and the genuine remorse shown.  It notes at paragraph 6.2 his family background by way of instability, and the proximal triggers associated with the offending related to financial strain, following on from the liquidation of his business.

115It notes the ongoing engagement in therapy which has been confirmed, as I said, by the earlier evidence and concludes at paragraph 6.5 that in the opinion of the psychologist Mr Vassallo has the capacity to successfully address his predispositions in the community, particularly with appropriate support.  Insofar as a community-based disposition, it was the opinion of the psychologist that he would be able to successfully complete conditions mandated by the Court.

116Today has been tendered as Exhibit D a community correction report which is also positive in favour of Mr Danny Vassallo.

117The plea of Mr Tovey went to the personal history of Mr Vassallo which is in particular set out at paragraph 7, of Exhibit D.  Mr Tovey submitted that it would be open, just and appropriate in all of the circumstances of this case, especially given the rehabilitation, remorse effected and the substantial support as I have indicated, for this Court to impose a CCO.

118Mr Tovey relied upon the positive progress and preparedness to change exhibited by Mr Vassallo and submitted that such produced powerful evidence of mitigation.  He relied in particular upon the letter from Mr Vassallo's wife, and the support from his employer.  I should say that I was particularly impressed with that letter.  It needs to be noted, and should happen no doubt more in the community that Mr Levin accepted Mr Vassallo back into his employ after his remand in gaol and being aware of the seriousness of this crime. Mr Levin has maintained support of him.

119It was submitted that rehabilitation, given Mr Vassallo's age, was important, that this first offence was very much associated with familial and drug problems.  Mr Tovey classified him, insofar as the offending is concerned, as a soldier and submitted to the Court that without the role of his father, when one understands the background that they have had, that his client would not have been involved.

120I, with respect to Mr Tovey, would take the view that that is a somewhat naïve submission.  It seems to me the real issue is that without being involved in drugs himself and being in a drug addled state at the time, he would not have been involved.  No doubt his father's role thereafter, added to his state, led to these circumstances.

121Mr Tovey finally in regard to mitigation submitted that I should accept the plea in this matter was valuable.  It was obviously valuable given the timing.  I think it must have had a substantial impact on the subsequent pleas of the other accused.

122Mr Tovey submitted that I should accept that there is genuine remorse in this matter.  He stressed the issue of no priors, the steps taken to some degree to establish rehabilitation, the support for him and his lower level of offending in these circumstances.  He also relied on what he had hoped would be a positive report which has indeed emanated.

123In those circumstances, it is my intention, Mr Tovey, to pass an aggregate community correction order which will involve a period of imprisonment and a community correction order.  There will be a work element of some 300 hours I intend to impose, given the role that your client has played, that community correction order for the maximum period that can be imposed of three years.  I intend to impose a work provision of 300 hours, supervision, assistance with his drugs ongoing and with programs to stop offending.

124Taking into account the period of actual remand that he served to date, I do think that an appropriate fine should be imposed and I intend to impose a fine of $5,000 with a stay of one year.

125In those circumstances, if such was acceptable to your client, I would impose a combined community correction order which involved no further service of the sentence.

126MR TOVEY:  I do not think that is going to be a difficult decision for my client, Your Honour.

127HIS HONOUR:  You do not think it is going to be?

128MR TOVEY:  No.

129HIS HONOUR:  No.  I would not have thought so.  Do you need to talk to him?

130MR TOVEY:  I do not.

131HIS HONOUR:  All right.  Yes, if you would stand up please.

132Mr Vassallo, you will be convicted of this crime.  Pursuant to s.41, for both charges, I pass upon you an aggregate combined period of imprisonment and a community correction order pursuant to s.44 of the Sentencing Act.  The period of imprisonment imposed upon you will be a period of 20 days and the community correction order will be for a period of three years.

133The conditions will be that you will be subject to supervision and programs to assist you to ensure you do not go back to any issue with drugs, that you do not further offend and that, as part of the penalty aspect of a community correction order, you serve by way of work hours over the period of those three years, 300 hours by way of community service.

134In addition I propose imposing on you a fine of some $5,000 for which I will give you a stay of one year. I indicate now that any applications to vary that in any way will need to be made to me and if you seek to extend that stay, I would require a substantial amount of money to have been paid.

135I should say I have also signed forfeiture and disposal orders in regard to Mr Vassallo.

136Insofar as s.6AAA is concerned, can I indicate that had you not pleaded guilty, the sentence I would have imposed upon you is a of straight sentence of 12 months' gaol.  I cannot take the matter any further than that.

137Again, a community correction order has been prepared and I am going to ask you to have you sign that, Mr Tovey, as you do not have an instructor, or do you have an instructor?

138MR TOVEY:  Your Honour, I might ‑ ‑ ‑

139HIS HONOUR:  No, you do.

140MR TOVEY:  I may have missed it whether Your Honour has formally declared that he served that period of imprisonment.

141HIS HONOUR:  Yes.  Yes, well, I formally declare under s.18 that the 20 days have been served and there is no reason therefore why he cannot commence the CCO as of today.

142MR TOVEY:  If I can approach my client.

143Your Honour, the community corrections order has been signed by Mr Vassallo and in so doing, he agrees to be bound by the terms of it.

144HIS HONOUR:  Yes.

145Yes.  Well, I think there is no reason why he cannot come out of the dock.

146MR TOVEY:  Yes.  If Your Honour is pleased.

147HIS HONOUR:  And I will excuse you if you wish to be, Mr Tovey, and your client.

148MR TOVEY:  As the court pleases.

149HIS HONOUR:  We come to your client, Ms Clark.  Ms O'Neil, can you hear me?

150OFFENDER O'NEIL:  Yes, I can, sir.

151HIS HONOUR:  Thank you.

152Ms O'Neil's position by way of culpability was at the bottom of the pile, if I use that phrase, as set out in the prosecutor's summary at paragraph 15(c).  She was active in the scheme.  She facilitated payments to Mr McArthur for Mr Vassallo, she made contacts within the 'trade' to try to have people use the ISO as a cutting agent and to seek to produce methamphetamine.

153Ms O’Neil indeed obtained a small amount of ISO from Danny Vassallo in Melbourne to assist in those experiments.  She was the cause of the particular excitement in November 2017 with her advice to Mr Dennis Vassallo that someone had converted the product.  It was probably the high point of the scheme.

154Ms O’Neil recruited buyers for the ISO as a mixing agent, for which she is not here charged nor forms part of her criminality. The prosecution accepts that there was no financial gain.  She became involved through a family contact in that her sister is married to Dennis Vassallo. It was submitted that all that was done was done at his request. 

155Ms Clark submitted that I should take the view that she was vulnerable and utilised by Dennis Vassallo, that she had no financial interest in the undertaking and certainly got no financial return and that, for example, she never even met Mr McArthur.

156I have got no doubt that Mr Dennis Vassallo had some role by way of the relationship with Ms O'Neil's sister, that he may well have utilised her vulnerability due to her own drug issues, however, it seemed to me from the reading of the materials that you, Ms O'Neil, were very much involved in this crime.

157Ms O'Neil has served by way of PSD 47 days.  The prosecution has conceded that further prison for Ms O'Neil would not be appropriate and insofar as alternative sentences raised the issue of the difficulties associated with a community correction order. That being in the circumstances, given her location, such being impractical.

158On behalf of Ms O'Neil, Ms Clark tendered a written submission, Exhibit O1, and a chronology and spoke to that; two psychological reports of Ms Alison Newton, Exhibits 2A and 2B.  Importantly, which were conditions of bail, 27 urine samples as Exhibit O3.  Exhibit O4 was an attainment certificate.  Exhibit O5 was a medical report as to medication from the Hughes Clinic from her GP.  Exhibit O6 was the attendance report of HOA.  And in addition, Exhibits O7 and O9 were tendered in support.

159Insofar as Alison Newton's report is concerned, I refer to Exhibit O2.  It is noted in the past that she self-medicated by using illicit drugs, that she is currently managing her anxiety with antidepressant medication.  At p.3 from that report, it noted the good progress that she has made.  It referred to the significant impact upon Ms O'Neil of the period in which she spent in gaol, and indeed the mental issues created thereby.

160In the plea, the personal circumstances of Ms O'Neil were put to the Court.  She has been on a disability pension for 15 years.  As I have said, she has had a significant period of substance abuse, but it would appear, as demonstrated by Exhibit O3, she has been free of drugs since March 2018.  There has been a non-curial impact of this crime and the fact that she was gaoled, being that she lost the accommodation that she had at the time and also lost the care of her children, who are now with her father, steps she wants to take to change.

161It was put by Ms Clark that not only has she no priors to date, even in the circumstances of her drug issues which is not usually seen in this Court, but she has effected admirable rehabilitation, in particular at her own cost for the screens, which I am told was $4,500.

162The fact of the plea itself was put as having high value given the issues, that it was said that the prosecution faced. I do not know whether I necessarily agree with that, but the fact is she has pleaded and it is utilitarian.

163It was put and there were six specific reasons put to the Court which I accept, at paragraph 33 of Ms Clark's submission, why a non-custodial submission was appropriate. I accept that in particular on the basis of the proposition put by the prosecution.

164Well, you can sit where you are.  You do not need to stand there, Ms O'Neil.

165Ms O'Neil, I intend to convict you and sentence you to a period of 47 days' gaol.  I declare under s.18 that the period that you have served on remand as part of this sentence - is to be declared as service of this sentence and a declaration to that effect is to be recorded in the records of this court.

166In addition, you will be fined a sum of $2,000.  I am aware of your financial issues and I am prepared to give you a stay of one year.  If you make any further applications in regard to that, they will have to be made to me.

167In regard to s.6AAA, doing as best as I can in the circumstances to indicate to you the benefit of a plea of guilty, can I indicate to you that had you not pleaded guilty, you would have otherwise been sentenced to a period of imprisonment of six months.

168I have signed a disposal order in your matter.

169I wish you well in your steps taken to free yourself of the effect of drugs.  I hope that that continues, and I hope that you are able to assist your sister in the short term in looking after her family.  That might be the first thing you can do.

170OFFENDER O'NEIL:  Thank you, Your Honour.

171MR HEVEY:  Your Honour, can I just ask whether you intend to convict the accused?  I do not think ‑ ‑ ‑

172HIS HONOUR:  I do.  I do.

173MR HEVEY:  Thank you, Your Honour.  I do not think the word was used.  Thank you.

174HIS HONOUR:  Yes.  If I had not said it in either of the sentences that they are convicted, I am meant to convict in each matter.

175MR HEVEY:  Thank you, Your Honour.

176HIS HONOUR:  Ms Clark, any matters that I need to ‑ ‑ ‑

177MS CLARK:  No, Your Honour.

178HIS HONOUR:  All right.

179MS CLARK:  May I be excused?

180HIS HONOUR:  Yes.  Thank you.

181OFFENDER O'NEIL:  May I be excused?

182HIS HONOUR:  Yes.  Thank you, Ms O'Neil.

183OFFENDER O'NEIL:  Thank you, Your Honour.

184HIS HONOUR:  We do not want to see you again.  All right?

185OFFENDER O'NEIL:  That's all right.  I'm hoping I don't see you again either.

186HIS HONOUR:  That was a bad mistake.

187OFFENDER O'NEIL:  Take care.

188HIS HONOUR:  Thank you.