Director of Public Prosecutions v McLeod
[2024] VCC 793
•3 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00500
CR-22-02331
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAGHAN McLEOD (AKA BRAEGHAN McLEOD) |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2024 | |
DATE OF SENTENCE: | 3 June 2024 | |
CASE MAY BE CITED AS: | DPP v McLeod | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 793 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: one charge of attempt to possess a marketable quantity of an unlawfully imported border-controlled drug – one charge of armed robbery – separate indictments – plea of guilty
Legislation Cited: Crimes Act 1914 (Cth); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Criminal Code (Cth); Bail Act1977 (Vic)
Cases Cited:R v Verdins [2007] 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; Black v The Queen [2022] VSCA 125; Akot v The Queen [2020] VSCA 55; Guden v The Queen [2010] 28 VR 288; Nguyen & Phommalysack v The Queen[2011] VSCA 32; (2011) 31 VR 673; The Queen v Nguyen & Pham[2010] NSWCCA 238; (2010) 205 A Crim R 106; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550; Marlan v The Queen [2003] WASCA 184; DPP v Swingler [2017] VSCA 305; 269 A Crim R 526
Sentence: Commonwealth charge – 3 years and 6 months imprisonment, with a non-parole period of 2 years and 2 months
State charge – 3 years and 6 months imprisonment, with a non-parole period of 2 years and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr S Hogan | Office of the Commonwealth Director of Public Prosecutions |
| For the Director of Public Prosecutions | Mr T Acutt | Office of Public Prosecutions |
| For the Accused | Mr L Dean | Hofman Carroll Criminal Law |
HER HONOUR:
1Braghan Dara McLeod, you have pleaded guilty to one Commonwealth charge of attempt to possess a marketable quantity of an unlawfully imported border-controlled drug contrary to ss 11.1(1) and 307.6(1) of the Criminal Code (Cth).[1] The maximum penalty for this offence is 25 years’ imprisonment.
[1] CR-22-02331.
2Additionally, you have also pleaded guilty on a separate indictment, Indictment no.C2316255, to a State charge of armed robbery contrary to s 75A of the Crimes Act 1958 (Vic).[2] This carries a maximum penalty of 25 years’ imprisonment.
[2] CR-24-00500.
3You have also consented to the transfer of a summary charge of commit indictable offence whilst on bail contrary to s 30B of the Bail Act1977 (Vic) and you have pleaded guilty to this summary charge (Summary Charge 3). This offence carries a maximum penalty of 3 months' imprisonment or 30 penalty units.
Circumstances of Offending
Commonwealth Offending
4I turn now to the circumstances of the offending dealing first with the Commonwealth charge. The offending in relation to this charge is set out in detail in a Summary of Prosecution Opening. At the time of the offending you were residing in Room 12 of the Ford Compound in the Melbourne Immigration Transit Accommodation (MITA) situated at 120-150 Camp Road, Broadmeadows. At the same time, a co-offender, Darren James Sexton, was residing in Room 13 of the Ford Compound at MITA.
5
On 11 May 2022 a consignment arrived in Australia from Malaysia via the DHL Air Cargo facility at Melbourne Airport. The consignment was in a box for a Panasonic CD stereo system described as containing an audio system. It was addressed to 'Sexton, Darren' at the MITA address. The consignment was
X-rayed and anomalies detected.
6Upon opening the consignment, Australia Border Force personnel found that within the package was a Panasonic stereo system with speakers. An examination of the internal components of the stereo system revealed a silver metal box which contained a foil-wrapped package. The package contained a clear crystalline substance which returned a presumptive positive test for methamphetamine. The package weighed 126.4 grams. A sample of the substance was analysed and found to contain 79.7% methamphetamine. Testing determined that the substance itself contained 95.6 grams of pure methamphetamine. This has an estimated street value of between $30,000 and $48,000.
7The consignment with its contents was reconstructed with the foil package and its contents substituted. On the morning of 24 May 2022, the reconstructed consignment was delivered to the intended address by way of controlled delivery by the Australian Federal Police.
8Just after 10am on 24 May 2022, a controlled delivery took place. The delivery was monitored by AFP members via CCTV which showed live footage of the Ford Compound and the property room. The footage reveals that the consignment was delivered by an AFP Police Officer posing as a DHL delivery driver, to MITA at 10.26 am.
9At 10.45am Darren Sexton was escorted by a MITA security officer to the property room to collect the consignment which he signed for and then placed in a large red and white checked bag given to him by a MITA officer. He was then escorted to the Ford Compound. He then immediately messaged you to say 'on way back' and you told him to call you via an app.
10At 10.56am Mr Sexton knocked on and tried to open the door of your room (Room 12), but there was no answer. Mr Sexton then went to Room 13 with the bag containing the consignment and re-emerged a short time later without the consignment. He walked to Room 12 and again knocked on the door and tried to open it but there was no answer. He sent you a message at 10:58am saying 'open up'. Mr Sexton then stood in the corridor before walking around the compound and re-entered Room 13 just after 11 am. You instructed him via text to message you first and then call.
11At 11.33am, you arrived at Room 13, entered and you left a short time later. At 11.35am you re-entered Room 13 before briefly walking to Room 15 and you then returned to Room 13. Mr Sexton then followed you back to Room 15, carrying the red and white checked bag. He closed the door to Room 15 behind him while you were both in that room.
12At 11.45am you returned to Room 12. You were then seen walking up and down the corridor interacting with another detainee before returning to your room. Meanwhile, at 11.47am, Mr Sexton walked out of Room 15, back to Room 13, before returning to Room 15 with a broom.
13At 11.48am the Ford Compound was locked down by security staff at the direction of Australian Federal Police who executed search warrants. Within Room 15 investigators found the red and white checked bag that Mr Sexton had been carrying. The consignment box was inside the bag; the Panasonic stereo system inside the consignment had been broken into pieces. A mobile phone which Mr Sexton had been using was found within Room 15. Police also searched Room 12 and seized a black mobile phone which showed that a phone number registered to you had been used in the phone.
14You were arrested and transported to Australian Federal Police headquarters at around 1.32pm the same day, where you gave a 'no comment' record of interview. The consignment box seized by AFP officers from Room 15 was examined for fingerprints. Latent fingerprints developed on the broken parts of the Panasonic stereo system inside the consignment box were identified as yours.
15The data from the phone taken from your room included the following:
(a) On 17 May 2022, you had a conversation via the messaging app Wicker with a person with the user name of 'Sayless1875'. In the conversation you asked Sayless1875 if something had 'got through', to which Sayless1875 responded, 'yeah got through customs remember where the rest got pinched, this one got through that’s why he said to be careful for any bugs'.
(b) On 24 May 2022 from around 10.54am you and Mr Sexton exchanged text messages until 11am.
16It is the prosecution case, which you accept by your plea, that you attempted to possess the contents of the consignment box, and that you were reckless as to the circumstances, in that the consignment box contained a border-controlled drug.
17The quantity of pure methamphetamine in the consignment was 95.6 grams. The prescribed marketable quantity of methamphetamine is 2 grams. You therefore attempted to possess over 47 times over the threshold for a marketable quantity of this drug.
18A filing hearing took place the same day. According to the chronology provided by the prosecution, the matter proceeded by contested committal in late 2022 and was listed for trial on 30 January this year. However, on day one of the trial you entered a plea of guilty to the same charge for which you were due to stand trial. In the weeks following this, you foreshadowed a change of plea application, which was ultimately not pursued. The plea hearing ultimately took place on 17 May 2024. It is therefore a late plea.
State Offending
19Turning now to the State offending which took place on 5 June 2023. At this time you had no fixed place of abode and you were on one count of bail in relation to the Commonwealth offending. The circumstances of this offending were set out in a Summary of Prosecution Opening for Plea dated 26 April 2024.
20In the evening of Monday, 5 June 2023, the two victims, 16-year-old Mitchell Cizmic, and his manager, Ms Lovepreet Kaur, and were working inside a Subway fast food restaurant located in Epsom Road, Ascot Vale. At 7.20pm you went to the store at which time Mr Cizmic was conducting cleaning duties in the front and Ms Kaur was sitting in the back office.
21CCTV depicts you wearing a black cap with 'Paris' written on it with an Eiffel Tower symbol on the peak and a grey hoodie covering your face with a black long-sleeved shirt and green or grey tracksuit pants with 'AIX' on the right leg. You can be seen in the CCTV footage with a flick knife with a silver blade and a dark handle.
22You entered the store and first spoke to Mr Cizmic before walking straight to the area behind the register. Mumbling, you said, 'I need you to open up the till' while holding the flick knife. You can then be seen on CCTV footage unfolding the knife in your right hand and you held it as you stood next to the till.
23Ms Kaur walked out from the rear office of the shop and spoke with you. You said the following, 'can you please open up the till?', 'open it now', 'please don’t fuck around', 'I’m going to snatch it and run'. At the time you were holding the knife in clear view of Ms Kaur but you did not point it at her. Ms Kaur did not comply with your requests. You then reached to the till and grabbed it with both hands ripping it from its place and walking from the store.
24You could be seen on CCTV footage walking towards the corner of Epsom and Maribyrnong Roads, and a few moments later a grey Toyota Kluger was observed leaving the driveway and driving southbound on Epsom Road erratically. The same Toyota Kluger station wagon was observed on Tuesday, 6 June in a driveway in Rose Court, Reservoir. The vehicle had been reported as stolen. Police attended at this address and upon arrival observed you in the driver’s side of the vehicle with an associate. Both of you fled when you observed police. You were arrested at nearby Crispe Park. At the time you were wearing clothing similar to that depicted on the CCTV footage.
25The vehicle was searched and police located a silver-coloured Harley Davidson flick knife located in the driver's side door and a bag in the boot of the vehicle which contained a black hat with 'Paris' written on it and a distinct Eiffel Tower symbol embroidered on its peak. Both the knife and hat, as well as the Nike sneakers you were wearing at arrest, matched those depicted in the CCTV footage. You were taken to Preston police station. Due to your drug-affected state you were deemed medically unfit for interview. Forensic testing of the steering wheel of the Toyota Kluger, the hat and the knife, identified traces of DNA 100 billion times more likely to be yours.
26The filing hearing for this charge took place on 7 June 2023. The matter ultimately resolved at committal on 3 April 2024 when you entered a plea of guilty. Your plea hearing in relation to this offending took place on 17 May 2024.
Prior criminal history
27You have admitted an extensive prior criminal history. Your first adult appearance was in the Magistrates’ Court in 2010 where you pleaded guilty to a number of charges including trafficking ecstasy, as well as a number of driving offences. You received a period of imprisonment partially suspended.
28Since then, you have had a number of convictions including armed robbery, robbery, burglary, reckless conduct endanger serious injury, handling and receiving stolen goods. In particular, you were sentenced for armed robbery in 2013 and sentenced to eight years' imprisonment with a non-parole period of five years following trial, which was upheld on appeal. Your most recent appearance was from 21 February 2023 when you were sentenced on charges of theft of motor vehicle, resist emergency worker on duty, committing an indictable offence whilst on bail and possessing methamphetamine. Again, you received a custodial sentence and a community correction order with a rehabilitation and treatment component. You were on this correction order at the time you committed the armed robbery. This, and the fact that you were on bail for the Commonwealth offending at the time are aggravating features, though I note that your commission of an indictable offence whilst on bail is the subject of a charge for which I must sentence you.
Sentencing Considerations
29As the charge of attempting to possess a marketable quantity of drugs is Commonwealth offence, you fall to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth). Section 16A(1) of the Crimes Act 1914 (Cth) requires me to impose a sentence that is of a severity appropriate in all of the circumstances of the offence.
30Accordingly, when sentencing you on this charge, I am required to have regard to a number of matters which are set out in s16A(2) of that Act to the extent that they are relevant and known to the court, and I do so. These include your personal circumstances, which I will turn to in a moment.
31Similarly there are a number of matters that I must take into account when imposing a State sentence, pursuant to the Sentencing Act1991 (Vic). Much of this overlaps the considerations required for sentencing for Commonwealth offending.
Personal circumstances
32You are now 35 years old. You were born in New Zealand where you were raised by your mother and your stepfather. Your stepfather was physically violent to both you and your mother. At one point you were hospitalised as a result. When you were in your early teens, you moved out of the house to live with your grandmother where you remained until you were 15 following her passing. You then returned home to live with your mother.
33You experienced learning difficulties at school which was disrupted and you were frequently in trouble for fighting, reflecting your own violent home life. You ceased your schooling at the age of 14. You believe you may have had Attention Deficit Hyperactivity Disorder. Indeed, psychologist David Ball, when he saw you in 2013, considered that you may satisfy the diagnostic criteria for ADHD.
34You began using drugs from a very young age, 11 or 12, starting with cannabis use. You have been using methamphetamine on and off since you were 13.
35Your family sent you to Australia to live with relatives in order to give you a fresh start. You resided with an aunt on and off. You have done some sporadic work including window fitting and tiling. You have also spent significant periods of time in custody, the longest of which commenced in 2013. Just prior to the imposition of that sentence you were residing with your partner with whom you share a daughter. At the completion of your sentence in 2020 you returned to live there. Sometime after this, your visa was cancelled and you were placed in immigration detention in 2022 where you committed the Commonwealth offending. You spent seven months in immigration detention before the Federal Court overturned the decision to deport you and you were released back into the community. You again went to live with your partner until the relationship came to an end in November 2022 and you found yourself homeless. You have had no contact with your former partner since then.
36You were able to find accommodation with family and it was with them that you were residing in February 2023 when you were placed on a community correction order. However they moved address and you found yourself homeless again. You were couch surfing and using drugs to stay awake to manage your transience. You were not working, nor were you eligible for Centrelink benefits. You had no income when you committed the armed robbery and it was in this context that you committed that offence.
37When assessed by David Ball in 2013 you were diagnosed with meeting many of the criteria for Dysthymic Disorder, with Mr Ball considering your symptoms had been long standing and stemming from your grossly dysfunctional family of origin. Of concern to Mr Ball was the rise of antisocial features of your personality. He considered you a low functioning individual, prone to very poor judgment, impulsivity and failure to learn from previous mistakes. Although somewhat dated, I take into account the matters raised in that report in particular with respect to your upbringing and impact that your childhood exposure to violence and drug use has had upon you. There is no current expert material regarding your mental health. No submissions are made that considerations of
R v Verdins have application here.[3][3] [2007] 16 VR 269.
Exposure to Violence
38Your counsel submits that your exposure to family violence and your experience of deprivation during your childhood is such as to enliven the principles espoused in Bugmy v The Queen.[4] Reliance is placed on the psychological report prepared by David Ball in February 2013. You had described to Mr Ball, a disengaged, chaotic and dysfunctional family background. In particular you described your stepfather’s substance abuse issues and his violent behaviour. He reportedly beat you for any little thing you did wrong. The circumstances of your dysfunctional and violent upbringing, along with your limited education and recurrent substance abuse commencing from an early age were matters that this court took into account when sentencing you in 2013, prior to the decision in Bugmy v The Queen.
[4] (2013) 249 CLR 571.
39In that case of Bugmy v The Queen, the High Court noted the relevance of exposure to substance abuse and violence during an offender’s formative years, and the way in which a background of that kind may compromise a person’s capacity to mature and learn from experience. Pursuant to Bugmy, an offender's background of deprivation is relevant because his or her moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[5]
[5] See Black v The Queen [2022] VSCA 125 [22].
40Here the abuse that you witnessed and experienced yourself, is said to explain your recourse to illicit drug use, which is linked to your past offending and the offending here. I accept that is the case here, particularly with respect to the armed robbery. This was clearly an impulsive recourse to violence in order to sustain your drug addiction. It is perhaps less clear with respect to the Commonwealth offending. There was some degree of planning involved in that offending and your exposure to childhood violence does not necessarily explain why you committed this offending. Nor does it establish that moral culpability ought be reduced. However, I accept that your reason for importing drugs was, to a large extent, if not entirely, motivated by your own addiction. To this end, the principles in Bugmy still have some application, though perhaps not of the same weight.
41Accordingly, I have taken your childhood trauma into account and moderated your sentence accordingly both with respect to the armed robbery, and to the Commonwealth offending. Whilst there is no current psychological material before the court, I note that, as the High Court recognised:
'The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences.'
42However, whilst a disadvantaged background may have the effect of reducing moral culpability, it will also increase the importance of protecting the community. Here community protection is of considerable importance, particularly when it comes to sentencing you for the armed robbery.
Risk of deportation
43There is a risk that you may be deported as a result of the sentence imposed for this offending. You have not yet received any correspondence regarding further cancellation of your visa. Although I cannot speculate as to whether you will be deported, I accept that your prospective deportation may weigh upon you whilst in custody, thus increasing the burden of imprisonment.[6] I have been told that you hope to be able to reconnect with your daughter, now aged 10, upon your release. Beyond this, however I have not heard any evidence as to why deportation itself would be particularly difficult for you. Your circumstances seem to be somewhat different to somebody who has made a life in Australia, whether that be by way of employment or family, who faces a similar prospect of deportation. Accordingly whilst I give this matter some weight, it is moderate.
[6] Akot v The Queen [2020] VSCA 55; Guden v The Queen [2010] 28 VR 288.
Nature and Gravity of the Offending
Commonwealth charge
44The offending here in relation to the Commonwealth charge is inherently very serious as is reflected by the 25-year maximum penalty applicable. Higher courts in Australia have emphasised often enough that those who engage in offending involving marketable quantities of unlawfully imported border-controlled drugs must expect to receive condign punishment if caught.
45Pursuant to s16A(2)(a) of the Crimes Act 1914 (Cth), I must take into account the nature and circumstances of the offence. In doing this, I must assess your level of criminality, considering the role you have played.
46Here, you communicated with an unknown person approximately a week before the consignment was delivered to the MITA compound querying whether something had 'got through', to which Sayless1875 referred to something getting through customs but to be careful for any bugs. It can be inferred from this that you were expecting something to arrive.
47Once the consignment was delivered to MITA, your co-offender contacted you via text message and then attempted to enter your room on multiple occasions. You directed Mr Sexton to call you and ultimately you attended Room 15. You were clearly present when the consignment was disassembled (something that Mr Sexton had not undertaken in your absence) and, upon realising the substance had been replaced, the prosecution submits you sought to distance yourself from it. All I can infer from this is that you left the room.
48The prosecution have clarified their position with respect to your role. You are not said to be the principal organising the importation. But it is submitted that you played a key role in the commission of the offending, and I accept that you played an important role. This includes directing Sexton where to bring the consignment, having knowledge of where the substance was concealed within the package and knowing that it had passed through customs prior to delivery. The prosecution submits you were to be a principal beneficiary of the offending. There was clearly some degree of planning.
49I have had regard to the principles summarised in the Victorian Court of Appeal decision in Nguyen & Phommalysack v The Queen,[7] previously distilled in the New South Wales decision in The Queen v Nguyen & Pham.[8] Those cases largely concerned importation offences, and the principles are applicable here. These principles include that the quantity of the illegal drug involved is a highly relevant factor in determining the objective seriousness of the offence and is often the main factor available to assess comparative seriousness of criminality. I take into account that the quantity of drug that you attempted to possess was over 47.8 times the threshold for a marketable quantity. It was indeed a sizeable quantity of pure methamphetamine.
[7] [2011] VSCA 32; (2011) 31 VR 673.
[8] [2010] NSWCCA 238; (2010) 205 A Crim R 106.
50It is further submitted by the prosecution that by bringing drugs into a secure facility you have attempted to undermine the responsibility of the Federal government to ensure the safety and wellbeing of the detainees. This is relevant to my assessment of the gravity of your offending.
51Introducing drugs into a secure facility has the potential to compromise the safety of other detainees, thus making the offending more serious. Equally however, the environment into which the drugs were brought, offers a smaller market for potential sale or distribution.
52Your counsel has submitted that it was intended that you use the drugs for your own use. Given that you were a detainee in the secure federal facility, whilst this might give rise to an inference that you intended to circulate the drugs, Mr Dean submits it is equally open to conclude that you were seeking to obtain a stash of drugs as they were not readily available as they might have been had you been in the community. Considering your history of substance abuse, it is not a stretch to conclude that at least some of the drugs, if not all, were intended for personal use, despite the potential for you to use the drugs to make a profit. I accept that there is no evidence to support the making of an adverse finding that you attempted to possess the drugs for a profit, and I do not make such a finding.
State offending
53As for the State charge, this was also serious. Again, the maximum penalty for armed robbery is high, reflecting that it is viewed as a serious offence. Here you robbed a soft target food outlet and had with you a flick knife. One of your victims was a 16-year-old. No person going about their employee duties should be subjected to this sort of violence and frightening behaviour while they are at work, let alone a teenager trying to earn a living. Whilst you did not use it in a particularly menacing way such as pointing it at the victims, nonetheless was in your hand when you demanded the victim open the till, and no doubt added to the sense of violence. Whilst there is no victim impact statements here, I accept that this must have been an extremely frightening experience and particularly for a young person like Mr Cizmic. Your moral culpability is high. I accept that the offending involved a degree of planning in that you had covered your face and had a method of fleeing from the scene. Having said that, the execution of the offending was relatively unsophisticated and was of short duration.
Current sentencing practices
54I must have regard to current sentencing practices when considering both sets of offending. However, this is only one factor and not the controlling factor in the fixing of a just sentence.
55As the High Court set out in The Queen v Pham,[9] when sentencing for a Commonwealth offence, I must have regard to sentences that have been imposed in other States and Territories.
[9] [2015] HCA 39; (2015) 256 CLR 550.
56A table was tendered by the prosecution which summarised cases involving sentences for Federal drug offending concerning marketable quantities of border-controlled drugs.[10] The prosecution submits that these cases provide guidance as to the application of relevant sentencing principles and illustrate a sentencing pattern for drug offending of this kind. I have had regard to that table and to each of the cases referred to therein.
[10] Noting Marlan v The Queen [2003] WASCA 184 [6].
Parity
57Having said that, I must also have regard to the sentence imposed on your
co-offender, Mr Sexton, given the significance of parity in the sentencing exercise.58Mr Sexton pleaded guilty to the same charge as you on 24 February 2023. He was sentenced by His Honour Judge Bourke on this charge to three years and four months' imprisonment. He also pleaded guilty to a charge of possessing a border-controlled drug, being heroin. The total effective sentence imposed was three years and six months' imprisonment with a non-parole period of 18 months.
59Mr Sexton’s role was to be the addressee for the importation and movement of the package. He was not sentenced as a principal. Nor are you to be but again, I note your communications with 'Sayless1875' regarding the pending arrival of something. I find that you both had important roles to play in the enterprise though I would place yours higher than that of Mr Sexton given that you were the person he contacted upon the consignment’s arrival and that the package was not opened until you were present.
60I also note that Mr Sexton pleaded guilty at a much earlier point than you did. He admitted a prior criminal history, although it appears from the reasons for sentence in that case, that his prior criminal history was for older offending. He faced the prospect of almost certain deportation. However, his personal circumstances were, naturally different to yours, which I take into account.
Plea of Guilty
61I take into account your plea of guilty for firstly the Commonwealth charge. It was a late plea of guilty.[11] Furthermore after entering a plea, you initially made an application to change your plea, but withdrew this application. However you have eventually accepted responsibility, and in doing so you have saved the community the significant expense of a trial. Your plea has a utilitarian value and demonstrates a willingness to facilitate the course of justice. Although it is not a mathematical task, you are not entitled to the same discount for the Federal offending as your co-offender for the plea of guilty. Your plea is also some indication of remorse, however there is very little else to support that you are remorseful.[12]
[11] Crimes Act 1914 (Cth) s 16A(2)(g).
[12] Crimes Act 1914 (Cth) s 16A(2)(g).
62You did enter a plea of guilty to the armed robbery at an earlier stage and accordingly the sentence should reflect this. Again, in this case, you have saved your victims from having to give evidence relive the experience. Again, your plea of guilty to the armed robbery charge is also of significant utilitarian value.
Prospects of rehabilitation[13]
[13] Crimes Act 1914 (Cth) s 16A(2)(n).
63You come before the court with a relevant prior criminal history including previous appearances for armed robbery, attempted armed robbery, burglary and robbery. I note however there are no prior appearances of the type involving Commonwealth drug offending, but you have a prior for trafficking drugs. Despite receiving a significant gaol term in 2013 for a violent armed robbery, the past period of incarceration appears to have done little to deter you from turning to violent offences, largely in order to sustain a drug habit. You must have appreciated the seriousness of carrying out an armed robbery. You appear not to have engaged in any sort of drug rehabilitation. It also seems that you have few supports within the community though you are reportedly motivated to reconnect with your daughter. Notwithstanding this, I consider your prospects of rehabilitation to be poor.
64As indicated, I have had regard to the matters set out in s 16A(2) of the Crimes Act 1914 (Cth) including, as I have said, the nature and gravity of the offending, your personal circumstances including your background of abuse and exposure to drugs, your prior criminal history, your plea of guilty and the timing of the plea, and your prospects of rehabilitation. Your rehabilitation is a factor I take into account. Although I have found your prospects to be poor, it is in the community’s interests to see you rehabilitated and reintegrated into society.
65However this is not the only sentencing consideration. General deterrence is of significance with respect to both the Commonwealth and State offences. Pursuant to s16A(2)(ja) of the Crimes Act 1914 (Cth), I am obliged to have regard to the importance of sending a message to the community that those attempting to possess border-controlled drugs, will meet with significant punishment. That the potential rewards to be gained from such activities are neutralised by the risk of severe punishment.
66This is equally the case with respect to the armed robbery offence. This sort of offending is becoming all too prevalent and the community must understand that this offending, particularly for repeat offenders, will not be tolerated.
67The sentence that I impose also needs to deter you from considering such offending in the future. I must also give primary consideration to the principles of just punishment, denunciation and protection of the community. The principles apply both with respect to the Commonwealth offending, and the State charge. Community protection is particularly important when considering your conduct on the State charge but the community generally also requires protection from those committing offences with respect to marketable quantities of border-controlled drugs, given the scourge of drugs in our society and the untold harm that follows. Harm that you yourself that you have experienced. Furthermore, offences of this nature are often difficult to detect.
Totality
68You fall to be sentenced for a Commonwealth charge, and a single charge on the State indictment. The offences involve individual and serious conduct; each offence is distinct from the other and accordingly warrants individual punishment. There is a need for in each case for the sentence to reflect the individual charges and the conduct they comprise. You must also be sentenced for the summary charge.
69However, I must ensure that the totality of the sentences imposed for these separate crimes is met with a total and proportionate sentence. Therefore, I have both moderated to a degree the length of the individual sentences and the periods of cumulation which is necessary to avoid a crushing sentence.
70In the case of DPP v Swingler,[14] the Court of Appeal discussed sentencing where the indictment contained State and Commonwealth charges. Here there are two separate charges but the principles nonetheless have application. In that case, the Court set out a number of possible approaches to sentencing. Without repeating these, I simply note that it is my intention, consistent with the second option set out in that case at paragraph [78] to sentence you for the State charges (both indictable and summary charges) first. I will then direct the start date of the Commonwealth sentence to commence at a nominated period proximate to the expiration of the State non-parole period. This would, I hope, avoid any gap on the custodial term, whilst ensuring that relevant rules in relation to cumulation and concurrency are applied appropriately and within the proper sphere of each sentencing regime.
[14] [2017] VSCA 305; 269 A Crim R 526.
71Section 17A of the Crimes Act1914 (Cth) requires that I must not sentence you to a term of imprisonment unless after having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case. Similarly for the State offending, imprisonment must be a sentence of last resort. I am satisfied that nothing but a term of imprisonment is warranted in each case and your counsel has not submitted otherwise.
72Could you stand up please, Mr McLeod.
Sentences
73On the State charge of armed robbery, you are convicted and sentenced to 3 and a half years' imprisonment.
74On the summary charge of committing indictable offence whilst on bail you are convicted and sentenced to 1 month imprisonment. I order that this sentence be served concurrently with the sentence imposed on Charge 1, the charge of armed robbery.
75I fix the period before which you become eligible for parole on State charges as at 2 years and 2 months.
76On the Commonwealth charge, you are convicted and sentenced to 3 years and 6 months' imprisonment. I fix the period before which you become eligible for parole on the Commonwealth charge at 2 years and 2 months.
77I direct that the Commonwealth sentence is to commence 2 months before the expiration of the non-parole period for the State sentences imposed with this sentence.
78In effect, it is my intention to order some concurrency between the State and Commonwealth sentence bearing in mind totality but there are two individual and different sets of offending.
79This means that in a global sense, the period which must be served on parole equates to 4 years 2 months' imprisonment and the total effective sentence, if my calculations are right, would amount to a period of 5 years and 6 months' imprisonment.
80Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare 363 days pre-sentence detention.
81I make the order for forfeiture in the terms as sought.
Section 6AAA
82I indicate pursuant to s6AAA of the Sentencing Act1991 (Vic), that but for your plea of guilty, on the Commonwealth charge, I would have sentenced you to five years' imprisonment with a non-parole period of three and a half years.
83On the state charges but for your plea of guilty I would have sentenced you to five and a half years with a non-parole period of four years.
84I am going to ask the barristers to confirm the structure of the Commonwealth sentence in a moment but before I do, I must explain to you the purpose and consequences of fixing a non-parole period. This applies to the Commonwealth offending but it also has equal application to the State offending.
85The service of the sentence that I have imposed in relation to the Commonwealth offending will entail a period of imprisonment of not less than the parole period and there will be a period on parole, if granted parole, which would require you to comply with any obligations pursuant to what you are ordered to do by the Parole Board.
86If a parole order is made, the order will be subject to conditions. The parole order may be amended or revoked should you not comply with those conditions and, as your counsel will no doubt explain to you, if you do not fulfil those conditions, consequences may follow.
87Counsel, can I just ask you to confirm that there's no difficulties with the structure of the sentence as I have set out?
88MR HOGAN: No, Your Honour, there is no difficulties as long as the dates with respect to in months being set out, that is suitable. We do not need an actual commencement date per se.
89HER HONOUR: Yes. Yes. Thank you. For avoidance of doubt, the State sentence commences immediately.
90Yes. Is there anything you wanted to say, Ms Fetherstonhaugh?
91MS FETHERSTONHAUGH: No, Your Honour.
92HER HONOUR: Yes, Mr Dean?
93MR DEAN: No, Your Honour.
94HER HONOUR: All right. Yes. Thank you. Can you take Mr McLeod back into custody. Thank you.
95I thank counsel for your assistance.
96Adjourn the court please.
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