Director of Public Prosecutions v McNally & Doble
[2023] VCC 2480
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS | Case No. CR-21-01394 Case No. CR-21-01377 Case No. CR-23-00130 Indictment No. C1912775.3 |
| v LUKE MCNALLY and WAYNE DOBLE |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 6 February 2023- 14 March 2023 Plea:13 November 2023 (Wayne Doble) | |
DATE OF SENTENCE: | 18 December 2023 | |
CASE MAY BE CITED AS: | DPP v McNally & Doble | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2480 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trial - trafficking large commercial quantity - trafficking commercial quantity - possession of precursor chemicals - possession of scientific glassware, equipment and substances for the purposes of trafficking - trafficking in a drug of dependence – possession - possessing, carrying or using an unregistered Category E handgun.
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited:Polos v The King [2022] VSCA 258; Kapkidis v The Queen [2013] VSCA 35; Trajkovski v The Queen [2011] VSCA 170; 32 VR 587; Gregory (a pseudonym) v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, 5 [9]; DPP v Doble [2011] VCC; The Queen v Doble [2007] VSCA 47; Worboyes v The Queen [2021] VSCA 169; Nguyen v The King [2023] VSCA 310; Brown v The Queen [2019] VSCA 216; DPP v Bales [2015] VSCA 261; Mush v The Queen [2019] VSCA 307; Ngo v The Queen 2021 VSCA 21
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Brustman KC with Ms E Fargher (for trial) | Office of Public Prosecutions |
For the Accused | Mr Page (for trial and plea) | Emma Turnbull Lawyers |
| For the Accused Doble | Mr D Sheales (for trial) | Radovic Lawyers |
HER HONOUR:
Introduction
1Luke McNally and Wayne Doble, on 14 March 2023, a jury found each of you guilty of serious drug related offences committed between 25 October 2019 and 9 December 2019.[1] The dates of the offending correspond to the date of the installation of a surveillance device warrant and the date of the execution of search warrants.
[1] Indictment numbered C1912775.3
2Dealing with you, Mr McNally, first. Your offending occurred at three different locations. The first was in an outdoor garage at premises in Wallan in relation to which you were found guilty of trafficking by manufacturing, between 25 October 2019 and 9 December 2019, large commercial quantities of MDMA, methylamphetamine and P2P (Charges 1, 2 and 3), and trafficking simpliciter of MDP2P (Charge 4). You were also found guilty of possession on or about 9 December 2019 of eight different precursor chemicals (Charges 5 to 12) and scientific glassware, equipment and substances for the purposes of trafficking (Charge 14).
3The second location was within a concealed room, or clandestine laboratory, at 13 Horne Street, Elsternwick in relation to which you were found guilty of trafficking by manufacturing, between 25 October 2019 and 9 December 2019, commercial quantities of MDMA and methylamphetamine (Charges 15 and 16), and possession on or about 9 December 2019 of a precursor chemical (Charge 22) and scientific glassware, equipment and substances for the purposes of trafficking (Charge 23). The jury did not return verdicts on three other charges relating to that address because, at the beginning of the trial, on 6 February 2023, you pleaded guilty before them to those charges, being trafficking on or about 9 December 2019 of GBL and GHB (Charge 19), and possession on that day of two precursor chemicals (Charges 20 and 21).
4The third location was at number 7–12 Horne Street, Elsternwick, which was next door to number 13. This site was previously a well-known and long running brothel called the Daily Planet but at the time of the offences, was purportedly a drug and alcohol rehabilitation facility called the Wellbeing Planet, at which you were residing. In relation to that premises, you were found guilty of trafficking methylamphetamine, GBL and cocaine (Charges 24, 25 and 26 respectively), possession of three precursor chemicals (Charges 27, 28 and 29) and possession of MDMA (Charge 30), all occurring on or about 9 December 2019.
5Turning to you, Mr Doble, you were found guilty of two charges relating to the manufacturing that was taking place within the concealed room at 13 Horne Street, being trafficking between 25 October 2019 and 9 December 2019 in a commercial quantity of MDMA (Charge 15) and possession on or about 9 December 2019 of scientific glassware, equipment and substances for the purposes of trafficking (Charge 23). You were found not guilty of trafficking by manufacturing of a commercial quantity of methylamphetamine within that concealed room.
6Before that trial, on 3 February 2023, you, Mr McNally, pleaded guilty to two charges on a separate Indictment,[2] being trafficking on 31 July 2019 in a drug of dependence, namely 3 grams of methylamphetamine (Charge 1), and on or about 9 December 2019 possessing, carrying or using an unregistered Category E handgun being a 12 Gauge, Miroku brand, Model MK-10 Sport, under and over break open shotgun (Charge 2).
[2] Indictment No. K13195026
7Your respective pleas in mitigation proceeded on 25 September and 13 November 2023, and it now falls to me to sentence you for your conduct.
8In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[3] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence. First, I need to set out the circumstances of your offending in more detail.
[3] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’)
Circumstances of the offending
9On 31 July 2019, you, Mr McNally, were at the St Kilda Police Station waiting to be interviewed for a prior drug trafficking matter when you spoke to two people who, unbeknownst to you, were police covert operatives. They secretly recorded the conversation.
10You told them you were a biochemist facing charges over a clandestine ice laboratory you had been operating in Rushworth. You said that when police turned up to execute a search warrant at that laboratory you destroyed evidence to conceal the quantity of drugs you were producing and that the police were saying the laboratory had two 1000 litre vats.
11You said you were living at the ‘rehab’ in Elsternwick and were still trafficking drugs. You discussed selling them an ounce for $3000 and gave them your mobile number.
12Following this conversation, the two covert operatives attended at 7-12 Horne Street and bought approximately 3.5 grams of methylamphetamine from you for $400. You showed them your room, but the sale took place in a communal area. You took the drug, which was in crystal form, from a clip seal bag inside a large tube sock on a table and weighed it in their presence. The substance was later analysed and found to be 79 per cent pure, weighing 3.1 grams.
13This sale comprises Charge 1 on your plea indictment.
14After the sale you, Mr McNally, and the covert operatives continued to communicate via an encrypted application about you supplying drugs. Police also commenced surveillance activities in relation to you, including from 17 September 2019, lawfully intercepting your mobile telephone and later installing a tracking device on a car you were driving. That car, a Ford Ranger, was registered to a company called Playaround Pty Ltd of 13 Horne Street of which you, Mr Doble, were the director.
15This surveillance led to the discovery of 90 Rowes Lane, Wallen. Analysis of your phone data, Mr McNally, also revealed that you were regularly researching topics related to the manufacturing of drugs of dependence.
16In relation to the trial offences, a detailed summary of the background and circumstances is set out in the Summary of Prosecution Opening. However, the relevant facts I find consistent with the jury verdicts are as follows. I indicate that to the extent there are matters that aggravate your conduct, I am satisfied of those matters beyond reasonable doubt.
Horne Street, Elsternwick.
17At the relevant time the two properties at numbers 7–12 and 13 Horne Street were owned by a company called Auyin Property Development Pty Ltd (Auyin), of which Richard Fu was the manager. Auyin occupied the top (third) floor of number 13 Horne Street, and the second floor consisted of office spaces.
18After the Daily Planet collapsed in around 2017, Mr Fu rented number 7–12 to the Wellbeing Planet for the purpose of operating a rehabilitation facility. Denise Abadee signed the lease as Director, but you, Mr Doble, were Mr Fu’s contact in relation to the premises. He knew you from your involvement in the Daily Planet.
19At around the same time, Mr Fu rented the ground floor of number 13 to a person unconnected to this case for use as a storage facility. That tenant was evicted in about October 2019 after falling behind in his rent. When that happened you, Mr Doble, spoke to Mr Fu about renting the ground floor to use as a gymnasium. Mr Fu agreed and, in early November 2019, he gave you the only key he had to the front door to the premises so that you could renovate it in advance of signing a formal lease, which you did on 26 November 2019 as director of Playaround.
20After gaining access to number 13, the two of you, Mr Doble and Mr McNally, set about altering the interior of number 13 and building a clandestine laboratory inside it. You enlisted the assistance of two other clients of the rehabilitation facility to do the building works, Joon Lee, who had carpentry skills, and David Hayes who you, Mr Doble, described as an ‘electrician come handyman’ in your record of interview. The laboratory was concealed behind a wall and a set of shelving. At some point you also unsealed an internal connecting door between number 13 and number 7-12, where both of you were living at the time.
21You, Mr McNally, were living at number 7-12 pursuant to your bail on the drug trafficking charges that you discussed with the covert operatives, and according to your record of interview, you Mr Doble, were living there as the building manager, having previously worked in the Daily Planet in a similar capacity. You said in that interview that you had been the building manager since the facility opened and paid no rent in return for your services. You claimed to have nothing to do with running the business itself.
22After the clandestine laboratory was up and running you, Mr McNally, set up a video camera which recorded the goings on. This was at a time when the exterior of the laboratory was still in the process of being built, but the laboratory was clearly operating. This camera was seized when the search warrants were executed on 9 December 2019.
23Footage from the camera shows you, Mr McNally, in the process of drug manufacturing and you, Mr Doble, watching him and inspecting the building works at various times. At one stage, whilst the walls of the laboratory were still unplastered, the two of you have a conversation about manufacturing and trafficking. In that conversation you, Mr McNally, tell you Mr Doble that ‘it didn’t fine up’ and something like you thought you fucked up but you did alright. You, Mr Doble, ask what a particular substance is and you, Mr McNally, tell him that it is ketone. The two of you then discuss whether a drug which you call ‘M’ is ready to be sold with you, Mr McNally, indicating that there is not much of it to be sold and talking about selling some for $1200, and also mentioning ‘$20,000 a kilo or something’.
24Mr Hayes and Mr Lee are also clearly visible in the footage. Mr Hayes can be seen assisting you, Mr McNally, in the manufacturing process and also in the construction of the fake wall. Mr Lee can be seen inspecting the laboratory equipment and the fake wall.
25Fingerprints of you, Mr McNally, and also Mr Hayes were later found on items and equipment inside the clandestine laboratory.
26On 9 December 2019, police executed search warrants at the two addresses at Horne Street. Over the next few days they discovered the clandestine laboratory and a range of drugs, precursor chemicals and equipment at both addresses which they catalogued. The laboratory was not found until the second day. The drugs, chemicals and equipment formed the basis for the charges on the trial indictment in relation to those two properties.
27The two of you were charged with between dates trafficking of commercial quantities of MDMA and methylamphetamine at the clandestine laboratory and possession on 9 December 2019 of all the scientific glassware and equipment found there. Only you, Mr McNally, were charged with either trafficking or possession on or about 9 December 2019 of all the other drugs and chemicals at the two addresses. The single date trafficking charges were based on your possession for sale of the relevant drug. You were each found guilty as I have already outlined.
28During the search police also located a loaded 12 gauge under and over brand Miroku sawn off shotgun in a box in a room next to the clandestine laboratory at number 13. This forms the basis of Charge 2 on the plea indictment against you, Mr McNally. You can be seen carrying the gun around in a blue cloth whilst manufacturing inside the clandestine laboratory on the video camera footage.
29You, Mr Doble, were found by police on 9 December 2019 under a large air conditioner unit on the roof of number 7–12 Horne Street. The prosecution relied upon this as a piece of incriminating conduct. You argued that you were not hiding, but I am satisfied that you were. You were interviewed later that day and claimed that you had entered into the lease for number 13 for the purpose of setting up a massage studio, t-shirt printing business and a gym. You said you had used Mr Hayes to renovate the place for you, including by building the wall which concealed the laboratory, except you said you knew nothing about any drug manufacturing going on in there. You said the reason for the wall was to have a dust free environment for your t-shirt printing business. The prosecution relied upon your lies that you did not know or see anything to do with drug manufacturing at 13 Horne Street as incriminating conduct.
30You, Mr McNally, were found two days after the search had commenced in a room at number 7–12. You were face down between a bed and a wall, covered by a doona. You were hungry and thirsty. The prosecution also relied upon this as a piece of incriminating conduct. You did not dispute that you were hiding, but you did dispute the reason why. You were in no state to be interviewed that day and thereafter declined an interview.
90 Rowes Lane, Wallan
31The following summary only relates to you Mr McNally. On 19 August 2019, police saw you driving the Ford from number 7–12 Horne Street to 90 Rowes Lane, where you carried in a number of items to a garage on the property. Gungor Sert lived at the property with his wife, and later told police that he had rented the garage to you albeit you had used a different name. He denied knowing anything about drug manufacturing but was charged by police and found not guilty by the jury in your trial.
32Returning to your activities, on 15 October 2019 you attended Monash Scientific glass blowing services. The next day police installed a tracking device on the Ford.
33On 23 October 2019, you drove the Ford to Monash Scientific glass blowing services again and also Bunnings. You then went to Wallan, arriving late at night and leaving at 5.20am the next day.
34On 25 October 2019, police lawfully installed an optical and listening device into a partitioned section of the garage – on the north side – which had been converted into a clandestine laboratory. From then on, all the goings on in that clandestine laboratory were recorded and you were seen and heard on many occasions manufacturing drugs. Sometimes Mr Sert was inside the laboratory with you. On one occasion he assisted you by carrying bags of ice. Other times he went into the laboratory when you were not there, but he never himself manufactured.
35On 18 November 2019, police conducted a covert search of the clandestine laboratory pursuant to warrant. They took with them a forensic chemist, Dr Neely, who took samples from nine different items, which later analysis revealed contained methylamphetamine, P2P, ephedrine and MAPA. Evidence was led that MAPA is a precursor to P2P, and that P2P and ephedrine are both precursors, albeit separate precursors, to methylamphetamine. That is, P2P and ephedrine are not used in the same manufacturing process, although P2P is also a by-product of the conversion of ephedrine to methylamphetamine.[4] Police also saw handwritten notes you had made of methods of manufacturing.
[4] Trial Transcript (“T”) 598
36The next day, Mr Lee can be seen assisting you by carrying bags of ice, washing glassware and storing glassware containing substances.
37Simultaneous with the execution of the search warrants in Elsternwick, on 9 December 2019, police executed a search warrant at 90 Rowes Lane, Wallan, including the clandestine laboratory. The drugs, chemicals and scientific equipment found in the whole of the garage, not just the clandestine laboratory, formed the basis for the charges on the trial indictment relating to that property.
Your personal circumstances
38Turning to your personal circumstances. These were outlined in respective defence submissions and the various reports, letters and other documents that were tendered at your plea hearings.
Mr McNally
39Dealing with you first Mr McNally, Psychologist, Dr Aaron Cunningham, assessed you in July 2022 and prepared a report dated 3 August 2022 for the purpose of your prior drug trafficking matter. Psychologist, Patrick Newton, assessed you on 25 May and 28 June 2023 in relation to this matter and prepared a report dated 28 June 2023.
40You are a 38-year-old Wulgurukaba man. You were born in Brisbane in 1984. You grew up in Tweed Heads in Northern New South Wales and have one younger brother, Angus.
41Although you were supported and loved, your childhood was difficult because your parents fought frequently, eventually separating in 1996 when you were 12 years old. Thereafter, you lived with your mother and visited your father every second weekend. Your mother remarried twice, and you have a stepbrother. To this day you are very close to your mother, and she was a frequent attendee at your trial.
42Your father was a strict disciplinarian, but he never mistreated you and you are also on good terms with him. He is also supportive of you.
43You told Mr Newton that you suffered childhood asthma and described yourself as a ‘very sickly child’ who was ‘very skinny’ but otherwise normal.
44You completed Year 12 in 2002. You told Mr Newton that you did well at school and had a supportive friendship group, although you also said that you were persistently bullied for being thin. To compensate, you started going to the gym at age 17 and this became a central part of your life. Unfortunately, you supplemented your gym work with the consumption of anabolic steroids and androgenic drugs.
45After finishing school, you moved to Sydney to join the New South Wales Fire Brigade. You worked as a firefighter between the ages of 18 and 30 and won a bravery award. You told Mr Newton you enjoyed the excitement and the sense that you were contributing to your community. However, the work could also be traumatic, and you were particularly affected by seeing deceased children. In 2009, you were one among 75 firefighters who received bravery awards for their efforts during that year’s New South Wales floods.
46You told Mr Cunningham that you were disciplined by the Fire Brigade for disobeying an order to hose Indigenous protestors. You said you took stress leave after this incident and were prescribed psychiatric medication by your general practitioner.
47Whilst working as a firefighter you also competed as a bodybuilder at international level, coached health and nutrition and, in 2006, started a business called ‘Mass Nutrition’ which sold bodybuilding supplements. You were able to do those things because of the downtime at the Fire Brigade. You told Mr Newton and Dr Cunningham that the nutrition business was very successful. You claimed that at its peak there were over 40 franchised stores and that it was a $30 million business. Despite this, you said that in 2015 you walked away from the business and also stopped competing and coaching in bodybuilding.
48You have had four long-term relationships. Significantly, in 2010, you married an English woman, Wendy, with whom you had a daughter, Belle, who is now 12. In 2013, you and Wendy separated, and Wendy returned to the United Kingdom with Belle. You told Mr Cunningham that although there are court orders allowing you to see Belle, you have not been able to find her and have not seen her since 2013. This has been the cause of significant grief for you.
49You had a two-year relationship in your early thirties which you described to Mr Newton as ‘toxic’ and drug-fuelled.
50You are now in a relationship with Chiara Simmons. You have been together for four years and strongly support each other.
51You do not have a problem with alcohol and do not drink to excess but you have abused drugs. As well as the anabolic steroids, which you continued to take until your arrest on this matter, you have abused a wakefulness prescription medication called Modafinil. Further, in about 2014, you started taking methylamphetamine to ‘self-medicate’ for the distress of losing contact with your daughter and the lingering stress from being a firefighter. You told Mr Newton your use of ‘ice’ was ‘intense and severe from the outset’ and that you combined it with GHB.
52Your illicit drug use led to criminal offending, first in Queensland and then in Victoria. According to Mr Newton, you ‘became steadily more immersed in drug-using and criminal subgroups and further offending followed’.
53You have been on remand in this matter since your arrest on 9 December 2019, first at Marngoneet Correctional Centre and then at Port Phillip Prison. You have not wasted your time. Many letters attesting to your impressive contribution to prison life, particularly for Indigenous prisoners, were tendered on your behalf, including a letter from you. You have taken courses, including drug and alcohol treatment programs, undergone counselling and completed a three-year university course in fire investigation. You are a very successful participant in ‘the torch’ artistic program. Your artwork has been sold to corporations, organisations, and private collectors, and has won several awards. You have also assumed responsibilities such as prison support worker, peer educator, mentor, and senior member of the Aboriginal prisoner group. You have been described as enthusiastic, patient, and demonstrating compassion in these leadership roles.
54You told Mr Newton that your use of steroids has caused health problems, including cardiac, circulatory, and reproductive issues.
55In terms of your mental health, you told Mr Newton that you have body dysmorphia disorder stemming from the teasing you received as a child. This was your own diagnosis and Mr Newton did not agree with it. You also reported a history of anxiety-related disorders which you ascribe to your time as a firefighter. You told Mr Newton that although you thought you coped well at the time, after you left the fire brigade you had a ‘massive mental breakdown’ and were diagnosed with anxiety and depression. You have been prescribed medication for these conditions over the years but did not find it helpful and currently take nothing.
56After you were remanded on this matter you received counselling at Marngoneet Correctional Centre for anxiety and trauma but there has been nothing since you moved to Port Philip Prison.
57You are not depressed and, according to Mr Newton, your predicament has not lowered your self-esteem nor your self-image which is ‘relentlessly positive’. He assessed you as having above average intelligence. He considered the most appropriate diagnosis for you is Post-Traumatic Stress Disorder (PTSD), in partial remission. Although he did not discern any overt anxiety in you, he accepted your reporting of symptoms and concluded that your PTSD manifested with features of simple phobia and panic disorder.
58Based on your account of drug taking, Mr Newton also considered you to have a substance use disorder in relation to methylamphetamine, GHB and anabolic steroids, which would have been severe at the time of this offending but was now in remission.
Mr Doble
59Turning to you Mr Doble, Consultant Psychiatrist, Dr Anthony Cidoni, saw you on 20 October 2023 via video link for 60 minutes and prepared a report dated 8 November 2023.
60You are 65 years old and were 61 at the time of the offending. You have three sisters and two brothers. You told Dr Cidoni that both your brothers have abused cannabis and had mental health issues.
61You left school after Year 10 to start working. You had a variety of different jobs, each lasting several years. You worked at Repco, including as a manager, opened a mechanical workshop business with your uncle, was a spare parts manager at Mini Bits, and a manager at Mullens Wheels, and owned two different ski shops.
62In 1994 you closed your Melbourne businesses and moved to Queensland where you started a business called Playaround. Mr Cronin handed up a folder relating to Playaround which had trademark documents and some of your products including footwear, bedding and clothing bearing the Playaround label. Unfortunately, your business partner died in a motorbike accident and the business closed.
63You then sold cars in Queensland and received a contract to build a golf course on an army base in the Northern Territory. You arranged for your father and brother to build the course whilst you remained in Queensland. You then returned to Melbourne and opened a car yard where you met a person by the name of John Trimble. You went on to manage properties for him, including The Daily Planet.
64You were in a relationship with your wife for 30 years, apparently marrying her twice, and together you had two children, Jessica, and Daniel, aged 33 and 30 respectively. You separated from your wife in 2013, and thereafter had a long period of estrangement from your family, including your children.
65Jessica provided a character reference saying that you reconciled after the birth of her firstborn son in 2020, and since then have made a positive impact on her and her now two children. She says you are a committed, supportive and proud grandfather and have worked hard to rebuild and sustain your family connections.
66Your parents remained together until your mother’s death in May this year. Your father is 90 and lives alone. Prior to your remand you were your parents’ main carer. Now a sister has moved from Queensland to take care of your father during your incarceration. Another sister, Lisa Valentine, provided a character reference. She, like Jessica, described how you had changed in the last couple of years to once again becoming a caring, reliable, and responsible family man.
67For the last seven years you have been in a relationship with a woman named Pa.
68You have significant health problems. You have polycystic kidney disease, kidney stones, hypertension, prostatic enlargement, which may require surgery, symptoms including fatigue and brain fog consistent with long COVID, previous chest pain under investigation and a multi nodular goitre also under investigation.
69The most serious of these conditions would appear to be your kidney disease which is a chronic multi system disease. A report of Professor Ierino, nephrologist at St Vincent’s Hospital Melbourne dated 9 November 2023, indicated you have advanced kidney disease with more than 50 per cent loss of kidney function and a high risk of continuing decline over the next 5 to 10 years. If you develop end stage disease you may require dialysis. However, you are currently being evaluated for your eligibility for a new drug which may slow the disease’s progression. Your blood pressure appears to be well-controlled by medication and an episode of chest pain in January 2023 was diagnosed as pericarditis and seems to have resolved, although a stress echocardiogram is planned. It was during the investigation of that episode of chest pain that the thyroid goitre was discovered on a CT scan.
70Dr Cidoni records that you have no prior history of using illicit substances even though your criminal history, including prior sentencing remarks, indicates otherwise.
71In terms of your mental health, apart from seeing a psychologist three times in 2009 whilst in custody, you have had no engagement with mental health services. You told Dr Cidoni that ‘on reflection’ you believe you suffered depression from 2002 to 2014 and have suffered anxiety since 2009. You have had thoughts of self-harm but no suicidal ideation. In 2009, you were prescribed the anti-depressant Venlafaxine, which you took for about 18 months.
72Since your arrest on these matters, you report difficulty sleeping with consequent effect on your ability to function. Your mood has further deteriorated since your remand post jury verdict.
73Dr Cidoni considers you to have suffered from chronic major depressive disorder with anxious distress which has relapsed in the context of your arrest, incarceration, and medical issues. He recommended psychological treatment and restarting on antidepressants.
Objective gravity of your offending and moral culpability
74Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the inherent seriousness of the main offences in this case, their maximum penalties make it clear, as does the fact they are subject to various specific sentencing provisions which operate to constrain the sentencing discretion and promote harsher penalties.
75The maximum penalties for the offences, except Charge 30, are as follows:
·Trafficking a large commercial quantity of a drug of dependence – life imprisonment and a fine of 5000 penalty units;
·Trafficking a commercial quantity of a drug of dependence – 25 years’ imprisonment;
·Trafficking a drug of dependence – 15 years’ imprisonment;
·Possess, carry or use an unregistered category E handgun – 14 years’ imprisonment;
·Possession of a precursor chemical – 10 years’ imprisonment;
·Possession of substances, materials and equipment for the purposes of trafficking in a drug of dependence – 10 years’ imprisonment.
76In addition, the charges of trafficking a large commercial quantity are standard sentence offences, with the standard sentence for an offence of mid-range objective seriousness set at 16 years with a presumed minimum non-parole period of the total effective head sentence.[5] They are also Category 1 offences mandating the imposition of a term of imprisonment (not in combination with a Community Correction Order (CCO)) without exceptions. The charges of trafficking a commercial quantity are Category 2 offences which also require the imposition of a term of imprisonment (not in combination with a CCO) unless an exception applies. Finally, both of you will be subject to the serious drug offender provisions, the relevance of which I will explain later.
[5]Sections 5A and 11A of the Sentencing Act. The percentage is 60 per cent for total terms of less than 20 years, 70 per cent for terms of more than 20 years, and 30 years for life imprisonment.
77The single charge of possession of a drug of dependence, namely 1 gram of MDMA of which you, Mr McNally, were convicted (Charge 30), is obviously a lot less serious than the other offences, especially since the prosecution does not contend your possession was for the purpose of trafficking. In that situation, it is punishable by a maximum of one year imprisonment or 30 penalty units.
78The statutory sentencing regime for all drug trafficking offences in Victoria is quantitative rather than qualitative, that is, it is based on the quantity of the drug trafficked, rather than any sort of subjective assessment of its deleterious effects. All things being equal, the greater the quantity of drug trafficked, the more serious the offence.
79Based largely on the percentage purity of the drugs, Mr Page submitted that the charges of trafficking a large commercial quantity and commercial quantity of methylamphetamine and MDMA fell into the lower range of seriousness for the offences. He argued that a low purity was particularly relevant in a manufacturing rather than a supply scenario. A similar submission was made on behalf of Mr Doble in respect of Charge 15.
80To understand these submissions, the basis of your liability for those charges needs to be explained.
81You, Mr McNally, were the person who manufactured the large commercial quantity and commercial quantities of the drugs found on 9 December 2019 in the clandestine laboratories at Wallan and Elsternwick, and you, Mr Doble, were complicit in the manufacture of the commercial quantity of MDMA at Elsternwick. Specifically, the jury accepted that you, Mr Doble, had agreed with Mr McNally that he manufacture at least that quantity of that drug and that you intended that at least that quantity be manufactured. The jury did not accept that you had such an agreement or intention in relation to the commercial quantity of methylamphetamine.
82The items seized from both properties were analysed. The individual weights of any mixed substances found to contain a relevant drug were then added together to prove the large commercial quantity or commercial quantity of that drug. In other words, the prosecution did not rely on a single mixed substance to prove quantity, it relied on separate mixed substances, each of which contained the relevant drug in different percentages and in different states reflecting different stages of the manufacturing process. The items containing the various mixed substances were also found in different locations within and without the two clandestine laboratories.
83The individual mixed substances making up the large commercial quantity and commercial quantity charges, their location, total weights and percentage purity are set out in Exhibits N (Wallan) and O (13 Horne St). I accept that it is possible that some of the individual mixed substances containing relatively low quantities of the pure drugs may have been intended to be discarded.
84For example, Charge 2 (Wallan), comprised 17 different mixed substances ranging in purity from 1.4 per cent to 82 per cent with a total weight of 2.099 kilograms. The single mixed substance weighing the most was liquid decanted from a glass calibrated bottle in the mezzanine level of the garage. This was outside of the clandestine laboratory. It weighed 1.3 kilogram and was comprised mostly of water. The percentage purity of methylamphetamine in it was 2.8 per cent or 36.4 grams. It also had ephedrine and trace elements of P2P. Dr Neely considered the 36.4 grams to be recoverable and therefore not a waste product, but he could not speak to anyone’s intention, nor could he say how it got there, for example whether it was because of contamination.[6]
[6] T598
85Similarly, in relation to Charge 15 (13 Horne Street), the bulk of the weight making up that charge, 586.3 grams of the total 621.3 grams, comprised a liquid containing only 2.6 per cent, or 15.25 grams, pure MDMA. This liquid was decanted from an open glass jar covered in aluminium foil (Exhibit 46), which was found in the freezer in the clandestine laboratory. The remaining solid weighed 13 grams and was 88 per cent or 11.44 grams pure MDMA.
86The evidence of Dr Verdon was that this item represented the precipitation or almost end stage of the production of MDMA. He explained that the item would have been in the freezer because precipitation is promoted by chilling liquid. He considered that more MDMA was recoverable from the liquid but could not rule out that the precipitation phase (which for this item would have lasted about 12–14 hours in the freezer) was over, and that it may have been intended to simply throw out the liquid. He agreed that it was impossible to tell from simply looking at the item how much MDMA was left in the liquid or how long it had been in the freezer. Further, if the precipitation phase was indeed over, the liquid would likely need further chemical treatment to extract any further MDMA. In any event, in terms of pure MDMA, the most that could ever have been extracted from this item was about 26 grams being the approximately 15 grams in the liquid and 11 grams in the solid.
87A recent Court of Appeal case makes clear ‘the proportion of a mixture that constitutes the relevant drug, when it is known, will inevitably be a relevant factor in assessing the gravity of the offending’.[7] Moreover, that same case acknowledged that determining the multiple of the pure drug in question to the relevant qualifying amount of the pure drug ‘may serve a legitimate purpose in the assessment of the gravity of the offending’.
[7]Polos v The King [2022] VSCA 258 at [61]. Compare Kapkidis v The Queen [2013] VSCA 35 in which the Court of Appeal held that only where the purity of the amount trafficked was ‘de minimis’ would the relative purity of a mixed quantity of drug bear upon the objective gravity of the offence, at [25]
88However, the case did not suggest that that ratio is the only, or necessarily even the most important factor, merely that it is, or indeed ‘may’ be, relevant to an assessment of offence gravity. Clearly there is no mathematical correlation between the multiple of the threshold quantity, whether mixed or pure, and sentence.
89Relevantly in this case:
· Charge 1 (large commercial quantity MDMA) comprised an amount of the pure drug (approximately 545 grams) which was about 72 per cent of a large commercial quantity of the pure drug and almost 5½ times the commercial quantity of the pure drug.
· Charge 2 (large commercial quantity methylamphetamine) comprised an amount of the pure drug (approximately 235 grams) which was about 47 per cent of a large commercial quantity of the pure drug and close to five times the commercial quantity of the pure drug.
· Charge 15 (commercial quantity MDMA) comprised an amount of the pure drug (approximately 46 grams) which was about half the commercial quantity of the pure drug.
· Charge 16 (commercial quantity methylamphetamine) comprised an amount of the pure drug (approximately 59 grams) which was 1.18 times the commercial quantity of the pure drug.
90The charge of trafficking a large commercial quantity of P2P (Charge 3) is not amenable to the same analysis as the legislation does not distinguish between pure and mixed quantities and no analysis of purity was done.
91It is clear from this analysis that the pure amounts of the drugs for each offence were not trivial. This is to be contrasted to the case of Trajkovski which, relevantly, involved 1.96 grams of a pure drug in a mixture which weighed about 3.9 kilograms.[8] To the contrary, the amounts here were relatively high compared to the relevant threshold pure quantities, and in one case higher. Notwithstanding the ratios could well have been much higher, and notwithstanding the possibility that some part of the total quantity of the relevant drugs may have been destined for rubbish, I am not satisfied that these were low level offences of their type.
[8] Trajkovski v The Queen [2011] VSCA 170; 32 VR 587
92To the contrary, when all the circumstances are considered I am satisfied in relation to each of you not only that your overall offending was very serious but also that your individual offences were at least mid-range and that your moral culpability is very high.
93Dealing with you first, Mr McNally.
(a) You were simultaneously manufacturing several different types of drugs namely MDMA, methylamphetamine, P2P, MDP2P and GBL/GHB.
(b) You were simultaneously manufacturing these drugs and possessing for sale, the same or other types of drugs, namely methylamphetamine, GBL and cocaine.
(c) You were simultaneously manufacturing drugs at two different clandestine laboratories.
(d) You were the ‘cook’ at both clandestine laboratories, only receiving limited assistance from others.
(e) The setup and manufacturing at both clandestine laboratories required a high degree of planning by you regardless of whether the laboratories were messy or disorganised by commercial standards.
(f) There were significant quantities of pre-cursor chemicals and scientific equipment and substances at both clandestine laboratories, indicative of the scale of the operations.
(g) You manufactured at Wallan for the full six-week period and set up and manufactured at Elsternwick for over a month.
(h) You operated the clandestine laboratory at Elsternwick even though it was next door to and accessible from what purported to be a drug and alcohol rehabilitation facility. You even utilised the assistance of two of the people who were receiving treatment for drug addiction at that facility. At best, this shows a complete disregard for the welfare of people supposed to be receiving treatment, at worst a cynical exploitation of them.
(i) Similarly, you trafficked drugs by either possessing for sale or actually selling them from the rehabilitation facility.
(j) The unregistered handgun you possessed was a sawn-off shotgun which was loaded and possessed by you in association with your drug trafficking activities.
(k) You were on bail at the time of all your offending for drug manufacturing in Victoria and were even bailed to reside at the place from which you trafficked drugs.
(l) You had outstanding warrants from Queensland for similar drug trafficking.
(m) You were clearly motivated by profit. In this regard, Mr Page submitted there was no evidence of a lifestyle of excess nor evidence of expected financial gain. Whilst that is true, I am satisfied that the reason for your offending was to make as much money as you could. No one would embark on such a risky, expensive, and time-consuming venture without the expectation of significant reward.
94You gave somewhat exculpatory accounts to Mr Newton and to me in your letter. You said you were essentially coerced into the offending.[9] In your letter to me you claimed that the clandestine laboratory at Wallan was pre-existing and you found that it was ‘a big mess of drums and containers full of unknown liquids’ from which you tried, unsuccessfully, to recover usable drugs. You said you only went through a fraction of all the bottles that were at Wallan, and that ‘the first I became aware of the contents of everything was when the analysis came back in my evidence brief’.
[9]Mr Newtons report at [38] - ‘Mr McNally explained that through the drug use in which he had engaged at the centre, he had accrued a significant debt. He said that he had then been ‘recruited’ by individuals to ‘work off’ his debt by assisting them to manufacture methamphetamine at the two properties. Mr McNally stated that he had felt that he had little choice but to comply since a) it allowed him to continue to obtain the drugs he desired; and b) he feared that he would be harmed if he did not do so’. You also told Dr Cunningham that you relapsed at the Wellbeing Planet after being kidnapped and shot at.
95Suffice to say, by their verdicts the jury found that you were the manufacturer of drugs in containers all about the shed, both within the clandestine laboratory and outside of it. In other words, they rejected the suggestion that you were not responsible for the items found on the south side of the shed which made up the bulk of the drugs in Charges 1 and 2. Further, your conversation with the covert operative on 31 July 2019 belies your claim to be a reluctant drug trafficker and I do not accept it.[10]
[10]On 6 December 2023, your solicitors advised in response to a question from my chambers that they did not seek to call [further] evidence or make further submissions in support of your assertions as to the reason for your offending
96In relation to you, Mr Doble.
(a) You facilitated and oversaw the setting up of a clandestine laboratory in premises controlled by you.
(b) You did so knowing the premises were next door to and accessible from what purported to be a drug and alcohol rehabilitation facility, and you even utilised the assistance of two people who were receiving treatment for drug addiction at that facility. Again, at best, this shows a complete disregard for the welfare of people supposed to be receiving treatment, at worst a cynical exploitation of them.
(c) You allowed significant quantities of pre-cursor chemicals and scientific equipment and substances to be brought onto and stored at premises controlled by you for use in that clandestine laboratory.
(d) Your involvement in the setting up of the laboratory and the manufacturing at Elsternwick lasted for over a month (from early November to 9 December 2019).
(e) You, too, were clearly motivated by profit.
(f) You were prepared to commit these crimes despite having been sentenced to terms of imprisonment for similar offending in the past.[11]
[11]Your prior convictions do not increase the gravity of your offending but they do increase your moral culpability as well as bearing on your prospects of rehabilitation and the need for community protection and specific deterrence
97During the trial, Mr Sheales raised the possibility that the contents of the glass jar (Exhibit 46), which makes up the bulk of the commercial quantity of MDMA, may have been manufactured by Mr McNally elsewhere, for example in Wallan, and brought to number 13, for the precipitation phase. As I understood his written plea submissions, he argued that the seriousness of your offending was somehow lessened because of this.[12] There are two responses to that submission. First, I find the scenario inherently improbable. Exhibit 46 was an open glass jar with aluminium foil on its top. It is unlikely that it would have been transported as a liquid, certainly in that jar, given the risk of spillage. Further, there was absolutely no need to conduct one part of the manufacturing process in one laboratory and another part of it, being the precipitation phase, in another laboratory. Secondly, even if it had happened, I do not consider it would lessen the gravity of your offending or your moral culpability to any significant extent. You still intended to manufacture a commercial quantity for expected significant profits.
[12] Mr Sheales prepared the written plea submissions but Mr Cronin appeared at the plea hearing
Current Sentencing Practices
98To promote consistency of approach in sentencing, particularly the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
99I have had regard to the most recent Sentencing Advisory Council Statistics and snapshots for all your offences and to the many cases to which I was referred by the prosecution and defence. I am conscious of the fact that in relation to Charges 1, 2 and 3, I must confine my consideration of current sentencing practices to sentences imposed for offences subject to the standard sentencing scheme, that is for offences committed after 1 February 2018. I have also had regard to the various Court of Appeal pronouncements in relation to the inadequacy of sentences imposed for commercial quantity and large commercial quantity trafficking of drugs of dependence, starting with the case of Gregory in 2017.[13]
[13] Gregory (a pseudonym) v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1, 5 [9].
100There is no need to recite the details of all the cases to which I was referred. There were many. I am grateful to counsel for their assistance in that regard. All the cases were informative, but not surprisingly none were all on all fours with this case either in terms of circumstances of the offences or offender. Only one of them, a county court sentence, involved a clandestine laboratory where the offending was subject to the standard sentencing regime.[14]
[14] DPP V Petkovic [2021] VCC 1723.
101Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Character and risk of re-offending
Mr McNally
102Dealing with you first, Mr McNally, Mr Page submitted that your prospects for rehabilitation were extremely positive in spite of the charges. I cannot agree.
103Your history of offending bodes poorly for the future. It is not so much your criminal record that is a worry - it only comprises three court appearances - but it is what has happened since.
104In 2017, only months after receiving a six-month suspended sentence at Southport Magistrates’ Court, you established two clandestine laboratories at properties in Cornella and Rushworth in country Victoria and began manufacturing methylamphetamine.[15] Clearly the suspended sentence did not deter you and nor did the fact you were also on bail for drug charges in Queensland. Police attended the Rushworth property on 10 January 2018 and just as you described to the covert operatives, the laboratory did go up in flames. You were arrested and remanded in custody and spent 246 days in custody before being released on bail.
[15] Six months suspended for 18 months imposed on 29 June 2017.
105In relation to those two clandestine laboratories, on 17 June 2019 you pleaded guilty in the County Koori Court to trafficking methylamphetamine between 9 October 2017 and 10 January 2018, possessing in the same timeframe equipment and substances for the purpose of trafficking, and possession of another drug of dependence, P2NP, which can be used in the manufacture of methylamphetamine. Your sentence was deferred for a year to facilitate your rehabilitation.
106The fact you were prepared to commit the offences before me whilst on bail and a deferral of sentence for that earlier matter is, quite frankly, astonishing. You were not deterred by the 246 days you had spent in custody, nor by the fact the sentence was still outstanding, and nor by the fact you were on bail for Queensland drug charges. Not only were you not deterred, you were prepared to traffick from the very place to which you were bailed for rehabilitation. In so doing you displayed absolute contempt for the court process.
107Your letter to me does little to alleviate my concerns. Mr Brustman described it as grandiloquent. It is certainly self-serving. Your account of how you were prevailed upon to commit the current offences is not only implausible, it is inconsistent with your enthusiastic dealings with the covert operatives and if not inconsistent with, is unsupported by the surveillance and CCTV footage from the laboratories. The detail of your account is also inconsistent with what you told Mr Newton and Dr Cunningham. I am satisfied it is an attempt to minimise your culpability.
108Similarly, your claims to be genuinely remorseful are of dubious value. They are interspersed with assertions of being wrongly charged and convicted and grievances about the prosecution’s refusal to accept your plea offer.
109As against all that, you have, as you boast, been an exceptional prisoner in ways I have already outlined. For that you deserve credit. It is clear you are a man of some ability and have the potential to make a real contribution to society in a good way if you so choose.
110As well as the letters and references attesting to your contribution in prison, many letters were tendered outlining the good things you have done outside of your incarceration. In your own letter you describe resuming contact with your friends and family in 2020 and how forgiving and understanding everyone was. I received letters from Aboriginal elders, firefighting colleagues, a former employee, your partner, her mother, your own mother and her partner. The authors outline your many good qualities, including leadership, generosity in time and money and diligence. You have worked with and given money to friends, charities, athletes and sporting clubs over the years. You even organised a trip to Sydney for Aboriginal students to meet Adam Goodes and other Indigenous AFL players.
111Mr Newton described you as demonstrating good insight into issues associated with drug relapse-prevention and harm minimisation. Whilst that is a positive, I am satisfied that your offending was attitudinal in nature and not just a product of your drug consumption. In other words, your ability to remain offence-free is not dependent simply on your abstinence, it requires a complete change of attitude on your behalf. You claim that this has occurred, as do your mother and other referees. I am afraid I am not so sanguine. All things considered, your prospects of rehabilitation are, in my view, moderate at best. It is not that there is no hope for you, but nor can there be any confidence that you will remain offence-free.
Mr Doble
112I now turn to you Mr Doble, Your criminal history is also very troubling, particularly two instances of similar offending in 2006 and 2011.
113In 1978 you were fined for theft. In 1991 you were given an adjourned undertaking for cultivating, possessing, and using cannabis, and in 1992 you received a suspended sentence and Community Corrections Order for obtaining property by deception.
114Your next court appearance was in 2006, some 14 years later. You pleaded guilty to offences arising from your part in a major drug trafficking syndicate, offences you committed whilst operating a used car business. You were sentenced by a Judge of this Court to a total effective sentence of four years and two months with a non-parole period of 25 months for trafficking heroin and methylamphetamine and possessing cocaine, MDMA and amphetamine, and unsuccessfully appealed that sentence.
115The experience of prison did not deter you. After you were released and whilst still on parole you trafficked drugs again. Not only did you traffick again, you trafficked a much greater quantity. In 2011, you were sentenced to six years’ imprisonment with a non-parole period of four years for trafficking a commercial quantity of cocaine and were ordered to pay a pecuniary penalty of $50,000 for that offence.
116Once again prison did not deter you, nor apparently did being on parole, for in 2016 you again came before the courts. You were convicted and fined $4000 for possessing cocaine, anabolic steroids and a Schedule 4 poison, using anabolic steroids, and breaching a prescribed condition of parole.
117That you committed the current offences against that background of serious offending of the same type does not, to put it mildly, bode well for your rehabilitation. One must wonder if serving two separate lengthy terms of imprisonment has not deterred you, what will?
118Character references and an offer of full-time employment were submitted on your behalf.[16] As well as the references form your daughter, Jessica, and your sister, Lisa, to which I have already referred, there were references from Michael Trimble and Julian Ulis.
[16]The offer of full-time employment was as Purchasing Manager and Quality Control at IT Structures Pty Ltd. Like the letters from Mr Trimble and Mr Ulis, there were two versions of this offer. The first was dated at the top 29 July 2021 but DocuSigned by the Director Anthony Goss on 28 June 2023, and the second had the top date removed and was DocuSigned by Anthony Goss on 14 November 2023
119Michael Trimble is the son of your close friend and former employer, John Trimble, who is now deceased. He spoke of your loyalty and commitment to his father and generosity in contributing to his funeral. Two letters were actually submitted from him, the first was addressed ‘to whom it may concern’ and said nothing about your past or present offending. The second corrected those anomalies but was otherwise identical.
120Two letters were also provided from Julian Ulis, who described you as a good friend and business associate. The first was undated, but clearly dated, as it spoke of your parents both being alive and aged, was addressed ‘to whom it may concern’ and made no mention of your past or present offending. It was also unsigned. The second was signed and on business letterhead. It was dated 13 November 2023 and included a new paragraph ‘regarding Wayne’s prior convictions, I still hold him in high regard…I am confident that given the chance, he will lead a responsible life and be an upstanding citizen’. Apart from those changes it was the same as the first, including referring to your ‘now aged’ parents. It is difficult to know where to start with Mr Ulis’ letters which continually refer to your ‘situation’, and rather cryptically, given your denial of the offending, say that what has ‘transpired’ is not in your character, and that you are ‘regretful of what has happened and realises the mistakes that he made’. I accept Mr Ulis knows and likes you, but that is about all I can take from what he says.
121I accept that you have support from your family and friends and that they consider that you have reformed. However, you had that support when you were sentenced in this Court on the two prior occasions, and it did not stop you from offending again.[17] Given your persistent offending and lack of remorse, your prospects of rehabilitation must be considered dubious.
[17] See DPP v Doble [2011] VCC at [58] and The Queen v Doble [2007] VSCA 47.
Parity
122It was argued for you, Mr Doble, that you fell to be sentenced as a person lower down on the hierarchy than Mr McNally and that your role was not significantly elevated over that of Mr Lee and Mr Hayes.
123On 20 May 2022, Mr Lee pleaded guilty to two charges of trafficking in methylamphetamine and one count of possess, carry or use a Category E handgun. Charge 1 was a rolled-up charge relating to his involvement in the trafficking enterprise at Wallan and Elsternwick, and Charges 2 and 3 arose from searches at his home and were unrelated to this matter.
124On 2 June 2022, he was sentenced to time served, being 76 days’ imprisonment on Charge 1 and a three-year Community Corrections Order on all charges.
125On 2 June 2022, Mr Hayes pleaded guilty to three charges of trafficking MDMA, methylamphetamine and MDP2P in relation to the clandestine laboratory at Elsternwick. On 18 August 2022, he was sentenced to a total effective sentence of 18 months’ imprisonment and a two-year Community Corrections Order.
126In my view, there is little to distinguish between you, Mr Doble, and you, Mr McNally, in terms of the gravity of the offences with which you were each found guilty (charges 15 and 23), nor your moral culpability for those offences. Whilst your roles were different, they were each vital and you were both driven by the desire to make money. Further, you each pleaded not guilty, and your offences were committed against a background of similar prior offending. Finally, as I will shortly outline you are each entitled to a modest reduction in sentence because of a mitigating factor, different in each case, but with similar effect on sentence.
127On the other hand, there is every reason to distinguish between the two of you and Mr Lee and Mr Hayes.
128Mr Lee had no prior convictions and pleaded guilty to trafficking simpliciter. He was sentenced on the basis that he was a vulnerable ‘ice’ addict whose parents had paid for him to attend the Wellbeing Planet where he met you two, that he did not know the scale of the operations, and that his role consisted of assisting the main players, being you two, over a period of about three weeks.
129Mr Hayes had a long history of drug addiction and prior convictions. He also pleaded guilty to trafficking simpliciter. He met you, Mr McNally, in prison in around August 2019, and from you learned of the Wellbeing Planet. He was then released on bail to attend the Wellbeing Planet and at that stage had been clean for six months. He was sentenced on the basis that on the second day of his attendance he was told that he could work for the fees at the facility and get paid in drugs whilst appearing to comply with his bail conditions. He then did so, assisting with the construction of the fake wall, the manufacturing and generally running errands. Her Honour Judge Quin said:
‘your role was not minor but I accept that you were not the driving force behind the operation – rather you were ready and willing to help … Your drug history and vulnerability made you a good target for those who could provide you with drugs.’[18]
[18] DPP v Hayes [2022] VCC at [41].
130The principle of parity does not warrant the imposition of the same or even a similar sentence for you, Mr Doble, and your co-offenders, Mr Hayes and Mr Lee, for what is, in any case, different offending subject to different maximum penalties.
Other mitigating factors
131There are two mitigating factors which apply only to you, Mr McNally. The first is your plea of guilty to certain charges. These are Charges 19, 20 and 21, on the trial indictment being trafficking GBL and GBH and two charges of a possession of a precursor chemical, and the two charges on the plea indictment of trafficking the 3.5 grams of methylamphetamine and possession of the unregistered handgun.
132In pleading guilty, you facilitated the course of justice and took legal responsibility for those crimes. You are entitled to a discount in your sentence on those charges. Further, given the timing of your pleas, I also consider you are entitled to the benefit of the Worboyes’ principle, that is the need for sentences to reflect the high value of pleas of guilty entered during the pandemic.[19]
[19] Worboyes v The Queen [2021] VSCA 169 at [39]
133The second is that after your remand you facilitated the surrender of certain weapons to the police. This is a matter that entitles you to a modest discount in your overall sentence.
134For both of you I take into account the fact that you were remanded just before the onset of the pandemic. You, Mr McNally, have spent the whole of the pandemic in custody during which time you have endured difficult conditions because of the efforts of prisons to minimise the spread of the virus. You, Mr Doble, were released on bail on 27 March 2020, so whilst you also had to endure those conditions it was only for a short time.
135Finally, in respect of you, Mr Doble, I accept that prison will weigh more heavily on you because of your depression especially in the context of your worry about your health (Verdins limb 5). For example, you instructed that you had a test six weeks before the plea to determine if your thyroid nodules were cancerous, but the wrong side was tested and a re-test is required, which may take another three months. Whilst I accept you are genuinely concerned that your treatment is not optimal, there is nothing before me to indicate that it is in fact substandard.
136I am not satisfied that limb 6 of Verdins applies to you. All that Dr Cidoni said is that there is a significant risk of deterioration of your mental state post-sentencing with a worsening of depression and associated anxiety. She expressed no opinion as to the extent to which your mental health might decline. This falls short of what is required to enliven limb 6, which is not only that the risk of deterioration be serious but also that the decline be significant.[20]
[20] Nguyen v The King [2023] VSCA 310 at [16]
Purposes of sentencing
137I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
138Generally, a custodial sentence must only be imposed as a last resort, and then be the absolute minimum required. Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality.
139In this case those general sentencing principles are qualified by some specific provisions.
140First, as I have already explained, trafficking in a large commercial quantity of drugs (Charges 1, 2 and 3) and trafficking in commercial quantities of drugs (Charges 15 and 16) are special categories of offences which are subject to the mandatory sentencing regime. That is, they require the imposition of custodial sentences without exception for trafficking in a large commercial quantity of drugs and with limited exceptions for trafficking in commercial quantities of drugs.[21] It has not been contended that any exception applies in this case.
[21] Not being one in combination with a community corrections order, section 5(2G) Sentencing Act 1991.
141Secondly, trafficking in a large commercial quantity of drugs has a standard sentence of 16 years. The methodology for sentencing standard sentence offences is now well settled and I need not repeat it here.[22]
[22] Brown v The Queen [2019] VSCA 216 - The sentencing court is not to engage in a two-step process of first assessing the objective seriousness of the offence compared to some hypothetical mid-range offence and then work up or down depending on personal circumstances or other factors. Rather, it must take into account the standard sentence and standard non-parole period in the same way as it takes into account the maximum penalty, and indeed all other relevant sentencing factors, to arrive at an appropriate sentence by instinctive synthesis.
142Thirdly, you each fall to be sentenced as serious drug offenders. In your case Mr McNally, you will be a serious drug offender once I come to sentence you on Charges 2, 3, 15 and 16 because I will be imposing a term of imprisonment on Charge 1. In your case Mr Doble, you are rendered a serious drug offender because of your prior conviction for trafficking a commercial quantity of cocaine. For each of you that means when sentencing you on a relevant charge (being Charges 2, 3, 15 and 16 for you Mr McNally and Charge 15 for you Mr Doble) I will be required to consider protection of the community as the principal sentencing purpose, and will be entitled to impose a disproportionate sentence to achieve that purpose.
143Fourthly, your status as serious drug offenders gives rise to a statutory presumption of cumulation of the individual sentences. The same presumption arises for you Mr McNally because of the fact your offences were committed whilst on bail. The law is that the more serious the overall offending the more those presumptions will operate to moderate the principle of totality.[23]
[23] DPP v Bales [2015] VSCA 261 at [38] ff and Mush v The Queen [2019] VSCA 307 [89] to [91]
144Even without those specific provisions the offending of each of you clearly warrants significant terms of imprisonment. The prosecution have not submitted in relation to either of you that a disproportionate sentence is necessary for the relevant charges and I am satisfied that I have enough sentencing discretion to achieve the purpose of community protection without doing so.
145Similarly, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation of each sentence, particularly taking into account the interconnectedness of many offences and the need to avoid punishing you twice for essentially the same conduct. Indeed, I consider I need to order substantial concurrency of sentences in order to avoid a crushing and wholly disproportionate sentence. Therefore, pursuant to s6E and 16(3C) of the Sentencing Act 1991, I ‘otherwise direct’ to give effect to my orders for cumulation and concurrency.
146In respect of both of you, the sentence I impose must have the effect of denouncing your conduct and deterring other like-minded individuals from committing such crimes. The Court of Appeal in a case of Ngo said this:
“In essence, it is important that the courts, by their sentences in such cases, make it clear to those who contemplate becoming involved in drug trafficking that, if they do so, and if they are detected, they will face long terms of imprisonment. It is only in that way that the law can seek to alter the calculus which otherwise motivates persons, such as the applicant, to be involved in that type of enterprise.”[24]
[24] Ngo v The Queen 2021 VSCA 21 at [70].
147In respect of you, Mr Doble, I accept that your depression warrants some moderation of general deterrence, but only to a modest extent. The principles of specific deterrence and community protection loom large for both of you. Of course, my sentence must also be just and take into account the mitigating factors I have already outlined in detail and allow for your rehabilitation by the setting of a non-parole period as low as possible consonant with the gravity of the offences and other sentencing principles. I see no reason to exceed the presumed minimum non-parole period of 60 per cent of the head sentence for you, Mr McNally.
148I am obliged to say how my sentence on Charges 1, 2 and 3 relates to the standard sentence of 16 years. In instinctively synthesising all relevant matters, in my view, a sentence below the standard sentence on Charges 1, 2 and 3 is warranted.
149After consultation with the parties, I intend to impose an aggregate sentence on the possession of precursor chemical charges at each address, that is, separate aggregates for each address. I do that because I am satisfied those offences are founded on the same facts and are part of a series of offences of the same or similar character.
Sentence
150Weighing up the competing considerations as best I can, you are convicted on each charge and sentenced to terms of imprisonment as follows.
McNally
Trial indictment
Charge No
Offence
Maximum
Sentence
Cumulation
Wallan
1
Trafficking in a large commercial quantity of a drug of dependence
MDMA - 2,454.9 grams
Life
10 years
Base
2
Trafficking in a large commercial quantity of a drug of dependence
MA - 2,099.3 grams
Life
10 years
1 year
3
Trafficking in a large commercial quantity of a drug of dependence
P2P - 3,720.1 grams
Life
10 years
1 year
4
Trafficking in a drug of dependence
MDP2P - 1,954.8 grams
15 years
3 years
6 months
5
Possession of a precursor chemical
Ephedrine 1,726.5 grams
10 years
3 years
Aggregate with Charges 6, 7, 8, 9, 10, 11 and 12
6 months
6
Possession of a precursor chemical
Methylammonium salts - 2,469.3 grams
10 years
7
Possession of a precursor chemical
Nitromethane - 984.4 grams
10 years
8
Possession of a precursor chemical
Ammonia - 3,771.9 grams
10 years
9
Possession of a precursor chemical
Hypophosphorous acid – 12,378.8 grams
10 years
10
Possession of a precursor chemical
Hypophosphorous salts – 172.2 grams
10 years
11
Possession of a precursor chemical
Magnesium – 235.7 grams
10 years
12
Possession of a precursor chemical
Safrole – 8,123.9 grams
10 years
14
Possession of substances, materials, and equipment to traffick in a drug of dependence
10 years
3 years
3 months
13 Horne Street
15
Trafficking in a commercial quantity of a drug of dependence
MDMA – 621.3 grams
25 years
5 years
1 year
16
Trafficking in a commercial quantity of a drug of dependence
MA – 453.3 grams
25 years
6 years
1 year
19
Trafficking in a drug of dependence
GBL and GHB – 544.1 grams
15 years
1 year
5 months
20
Possession of a precursor chemical
Ephedrine – 48 grams
10 years
18 months
Aggregate with Charges 21 and 22
5 months
21
Possession of a precursor chemical
Safrole – 96.6 grams
10 years
22
Possession of a precursor chemical
Phenylacetonitrile – 534.9 grams
10 years
23
Possession of substances, materials, and equipment to traffick in a drug of dependence
10 years
2 years
3 months
7–12 Horne Street
24
Trafficking in a drug of dependence
MA – 34.2 grams
15 years
1 year
1 month
25
Trafficking in a drug of dependence
GBL – 480 grams
15 years
1 year
1 month
26
Trafficking in a drug of dependence
Cocaine – 3.1 grams
15 years
6 months
1 month
27
Possession of a precursor chemical
Safrole – 3,848.1 grams
10 years
2 years
Aggregate with Charges 28 and 29
Nil
28
Possession of a precursor chemical
Phenylacetonitrile – 62.2 grams
10 years
29
Possession of a precursor chemical
Hypophosphorous acid – 1,303.5 grams
10 years
30
Possession of a drug of dependence
MDMA – 1 gram
1 year or 30 penalty units if not possessed for sale
14 days
Nil
Plea Indictment
Charge No
Offence
Maximum
Sentence
Cumulation
1
Trafficking in a drug of dependence
MDMA – 3 grams
15 years
6 months
1 month
2
Possess, carry or use an un regist-ered Category E handgun
14 years
3 years
1 year
Total Effective Sentence:
17 years and 8 months (212 months)
Non-Parole Period:
10 years and 7 months
Pre-sentence Detention:
1468 days not including today
Other orders:
You were sentenced as a serious drug offender in respect of Charges 2, 3, 15 and 16.
DOBLE
Charge No
Offence
Maximum
Sentence
Cumulation
15
Trafficking in a commercial quantity of a drug of dependence
MDMA 621.3 grams
25 years
5 years
Base
23
Possession of substances, materials and equipment to traffick in a drug of dependence
10 years
2 years
3 months
Total Effective Sentence:
Five years and 3 months (63 months)
Non-Parole Period:
Three years and 3 months
Pre-sentence Detention:
389 days not including today
Other orders:
You were sentenced as a serious drug offender in respect of Charge 15.
Section 6AAA
151Mr McNally, if you had not pleaded not guilty to the charges to which you did plead guilty and been found guilty by a jury, I would have sentenced you to total effective sentence for all offences of 18 years and 8 months with a non-parole period of 11 years and 2 months.
Ancillary orders
152The prosecution have made applications for ancillary orders, which were not opposed by the defence. I am satisfied it is appropriate to make each of those orders in the circumstances of this case. Accordingly I make a disposal order in respect of the drugs and all related paraphernalia seized from the three addresses, a forfeiture order in respect of the gun and ammunition and a forfeiture order in respect of $3,575 seized from 7 – 12 Horne Street.
0
11
3