Director of Public Prosecutions v Meagher

[2022] VCC 711

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-00537

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAYDEN MEAGHER

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2021 and 26 April 2022
DATE OF SENTENCE:	19 May 2022
CASE MAY BE CITED AS:	DPP v Meagher
MEDIUM NEUTRAL CITATION:	[2022] VCC 711

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  One charge of trafficking in a drug of dependence; large commercial quantity (MDMA) – one charge of trafficking in a drug of dependence (Cocaine) – one charge of possession of a drug of dependence (MDA) – gravity of offending for the first two charges in the medium range – high culpability – departure from the standard sentence – pleas of guilty entered at constrained time – excellent prospects of rehabilitation

Legislation Cited:           Sentencing Act 1991

Cases Cited:Quah v R [2021] VSCA 164; Victorsen v R [2020] VSCA 248; Worboyes v R [2021] VSCA 169; DPP v Pennaneach [2021] VCC 806; DPP v Best [2021] VCC 1730; DPP v Xiao [2021] VCC 2018; DPP v Rowe [2021] VCC 780; DPP v Chang (a pseudonym) and Anor [2021] VCC 1869; DPP v Nguyen; DPP v Pham; DPP v Vo [2021] VCC 1160; Dukic v R [2021] VSCA 18; Verdins v R (2007) 16 VR 269

Sentence: 7 years and 6 months' imprisonment with a non-parole period of 4 years and 6 months'

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sprague	Office of Public Prosecutions
For the Accused	Mr P.A. Dunn QC (for initial Plea) Mr D. Dann QC (for further Plea and Sentence)	Michael J Gleeson and Associates

HIS HONOUR:

Introduction

1To start with, Mr Meagher, I will tell you the sentence I will impose. Overall, I will sentence you to 7 years and 6 months' imprisonment.  I will set a non-parole period of 4 years and 6 months' imprisonment.   I will declare the 915 days of your pre-sentence detention as time served under this overall sentence.

2This proceeding has taken a considerable time to reach finality.  On 30 July 2021, you pleaded guilty to:

(a)   trafficking in a large commercial quantity of MDMA or ecstasy;

(b)   trafficking cocaine;

(c)   possession of 1,4-butanediol and MDA; and

(d)   the summary offences of possession of Paroxetine and Sildenafil, Schedule 4 poisons.

Penalties

3The maximum penalties for the offences are:

(a)   trafficking a large commercial quantity of a drug of dependence, life imprisonment;

(b)   trafficking a drug of dependence, 15 years' imprisonment;

(c)   possession of a drug of dependence, not related to trafficking, 1 year imprisonment;

(d)   possession of a Schedule 4 poison, 10 penalty units.

Circumstances

4On the morning of 16 November 2019, members of the police intercepted the car you were driving in Carrum Downs.  They had received a complaint of a motor vehicle being driven erratically.  One of the police members said of you:[1]

"…I noticed that the accused was extremely fidgety, had limited control over his arms and legs and appeared highly drug and or alcohol affected…"

[1] Statement of David Malloch, leading senior constable.

5With your consent, they searched the car and discovered a sports bag on the front passenger's seat.  A search of the bag and of you found tablets, powders, liquid, scales, unused deal bags and cash. The cash is the subject of a charge yet to be determined in the Magistrates' Court and not the subject of a charge before me.  Following your arrest, the police interviewed you and you made some admissions.

6The next day, the police searched your unit in Bulleen and found relevant substances in various places.  The combination of what was found on you, in the sports bag and at your unit were:

(a)   MDMA – with a mixed weight of 2,841 grams and a pure weight of about 1,714 grams;

(b)   cocaine – with a mixed weight of 27.8 grams and a pure weight of about 11.9 grams;

(c)   1,4-butanediol – 30.9 grams;

(d)   MDA – 0.6 grams;

(e)   Sildenafil – 2.1 grams;

(f)    Paroxetine – 0.6 of a gram.

Personal

7You are now 30.  You are the eldest of two children.  You were raised in an eastern suburb of Melbourne.

8You received a sound primary and secondary school education.  You completed a successful VCE.  You then attended university, obtaining degrees in commerce and arts.  While at university, you worked as a lifeguard at a swimming pool.

9Despite the nature of the degrees you obtained, you undertook and completed a carpentry apprenticeship.  In this regard, you were following in the steps of your grandfather.  You resigned from your last employment due to problems with your supervisor.  At the time of your offending, you were unemployed.  You have the offer of employment after you are released from prison.

10You were an excellent sportsman, figuring in swimming, triathlon and cycling.

11You lived with your parents until June 2019 when you moved into an apartment.

12You have been in two relationships: one for 12 months, the other for about
three months.  The last ended in about January 2017.

13After stopping work in 2019, you took Paroxetine for about four months as well as Xanax and Valium.  You have over time used various illicit drugs occasionally.

14In September 2019, you were involved in a motor vehicle accident.  Your motor vehicle was extensively damaged as were two other motor vehicles.  You described to Mr Cummins, the psychologist, the effect upon you of this accident and the end of your employment:[2]

“He then stated - "Well it was after I stopped working for Cre Liberia in July 2019 that things went right downhill. I got into GHB and got to the stage where I was regularly drinking 20ml per day. Then I had this car accident in September 2019 and after that things just started collapsing around me and from then until my arrest in November 2019 I was drinking up to 50ml of GHB daily. Between July 2019 and my arrest in November 2019 I also used a bit more MOMA and some cocaine, some ketamine and some Ice, but my main dependency was on GHB. I've never used drugs intravenously. I've never done any resi drug detox or drug rehab."”

[2] Report of Mr Jeffrey Cummins dated 20 July 2021 at paragraph 25.

15While in prison, you have completed courses including 24 one-on-one counselling sessions in relation to illicit drugs through Caraniche Pty Ltd.  You successfully participated in those counselling sessions.

16Since 30 March 2022, you started as a Drug and Alcohol Peer Educator to other prisoners.  The qualifications to become such an educator is explained in the letter of Tess Ryan, Psychologist, with Caraniche:

"Mr Meagher commenced his employment as a Drug and Alcohol Peer Educator on 30 March 2022.  Prisoners who are successful in obtaining the Peer Educator position are required to be role model prisoners
(no violent or drug-related incidents), be respectful with custodial and clinical staff and actively engage with peers.  The process of becoming a Peer Educator has four aspects: 1) application and selection, 2) peer educator training, 3) appointment to the role, and 4) regular supervision and reviews.  Once in the role, Peer Educators assist in disseminating information about AOD prison-based harm minimisation, the IDU process, AOD treatment options and support of the prisoner group.  Mr Meagher is a valuable part of the Peer Educator team and completes required components of his employment satisfactorily."

17You are now a Category B prisoner, which means you are a model prisoner, trusted within the prison.

18At least during 2021, you undertook a COVID-19 cleaning course, which enabled you to clean the recreation hall daily.

Psychologist

19Jeffrey Cummins is a clinical and forensic psychologist.  At the request of your solicitors, he interviewed you on 6 July 2021.[3]

[3] Report dated 20 July 2021.

20As is his practice, Mr Cummins took a detailed history.  Based on what you told him, at the time of the offending, he diagnosed you as suffering from an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.  This disorder started when you left work in July 2019.  It was exacerbated by the motor vehicle accident.

21In July 2021, Mr Cummins considered your prospects of rehabilitation as favourable, perhaps even very favourable.

Discussion

22Section 5(1) of the Sentencing Act 1991 (“the Act”) sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in;

(e)   to protect the community from the offender.

23In most cases, one or more of those purposes are relevant.  It is true in your case.

24Plainly, the purposes of deterring others from committing these or similar offences is very important.  As will become clear shortly, I am satisfied your prospects of rehabilitation are excellent.  You are unlikely to re-offend in this manner.  Less importance should be given then to deterring you or protecting the community from you.  Plainly, the community cannot tolerate people committing the indictable offences you committed, particularly those of trafficking.  My sentences should have a deterrent effect upon others.  They should manifest a denunciation of the offences.

25Section 5(2) of the Act sets out matters to which I must pay regard, where relevant.

Gravity of the offending

26In assessing the gravity of your offending, counsel for the Director referred me to passages from the case of Quah v R[4].  In relation to the trafficking offences, the quantity of the drugs is a significant factor.  The seriousness of the offence is, in part, reflected in the quantity.

[4] [2021] VSCA 164

27The form of trafficking relied upon for Charges 1 and 2 is possession for sale.  For Charge 1, the total mixed weight of 2,841 grams is 2.84 times the threshold for large commercial quantity for MDMA.  The pure weight of about 1,714 grams is 2.28 times the relevant threshold.  Comprising those weights were 2,124 tablets of various descriptions, and the rest in the form of powders.

28The second charge involved 21.7 grams of cocaine in 26 deal bags and
6.1 grams found at your apartment.  This drug was found in the sports bag, on you, and in a safe at your apartment.  The combined weight is 9.26 times the threshold for a trafficable quantity. 

29Even though the charges assert the offending as occurring on a single day or between two consecutive days, the Director submits the evidence shows ongoing trafficking activities regarding both charges through:

(a)   the cash found in your wallet and in bundles in a bag in your apartment totalling $47,405.  I note the charge or charges relating to these monies are still to be determined in the Magistrates' Court;

(b)   some of the drugs were stored in a safe and some were being transported in your motor vehicle;

(c)   the different forms of the MDMA, being tablets and powders;

(d)   the 26 deal bags containing cocaine;

(e)   the crystalline substance labelled "gym supplements", which was not an illicit drug, but was to be used as a cutting agent;

(f)    photographs on your mobile phone showing messages indicative of trafficking and a photograph of a clip-seal bag containing a white substance on scales.

30Except for the matter in (a), I accept the other matters and the thrust of the Director's submission.  You possessed the drugs in Charges 1 and 2 as part of ongoing trafficking activities or continuing commercial enterprise.  As the Court pointed out in Quah's case[5], it is the character of the possession for sale which is relevant.  Your possession was not confined to one or two days but a longer period.

[5] [2021] VSCA 164 at paragraphs 46 to 47.

31Your counsel submitted MDMA has a lesser street value than some other illicit drugs.  He tendered pages from the Australian Criminal Intelligence Commission, Illicit Drug Data Reports 2016-17, 2017-18 and 2018-19.[6]  In those years, the value of a kilogram of MDMA was $30,000 to $50,000; $55,000; and $35,000 to $40,000 respectively.  The value of an ounce[7] of heroin was $9,500; $9,500; and $5,000 to $6,000 respectively.  An ounce of cocaine was $8,000 to $11,000; $7,000; and $6,500 respectively.  A kilogram of methylamphetamine was $80,000 to $130,000; $105,000; and $96,000 to $105,000 respectively.

[6] Exhibit 3.

[7] There are 28.34 grams to an ounce.

32The point is well made when one considers the respective thresholds of MDMA, heroin and cocaine, whether mixed or pure and you possessed the MDMA for sale.  The same weight of heroin or cocaine is far more valuable than MDMA. 

33The gravity of your offending, at least in relation to the first two charges, is in the medium range.  Your level of culpability is high.

Standard Sentence scheme

34On 1 February 2018, the standard sentence scheme commenced operating.  Only a few criminal offences are standard sentence offences for which standard sentences are prescribed.  The offence contained in the charge of trafficking a large commercial quantity of a drug of dependence is one such offence.  The standard sentence for that offence is 16 years' imprisonment.  What is the meaning of a standard sentence?

35First, it is the period of imprisonment specified for a particular offence.  Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.[8]  The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[9]  Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[10]

[8] S5A(1)(b).

[9] S5A(3).

[10] S5B(2)(a).

36In Victorsen v R[11], the Court discussed the standard sentence scheme.  At paragraph 18, it said:

“In Brown, this Court said that a judge

when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’.  This requirement:

•    is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;

•    does not affect the established ‘instinctive synthesis’ approach to sentencing;

•    does not require or permit ‘two-stage sentencing’; and

•    does not otherwise affect the matters which the court may, or must, take into account in sentencing.”

[11] [2020] VSCA 248.

Guilty plea

37Although pleas of guilty were not entered until 15 March 2021, you offered to plead guilty to the most serious charge in late 2020.  Overall, I consider your pleas of guilty to these charges were made at an early opportunity.

38In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed.  At the very least, it avoids the need for a trial.  This saves time and expense of a trial.  It allows other trials to be heard earlier than would otherwise be the case.  It avoids the need for witnesses to give evidence at a trial.  Generally, this is an onerous task for witnesses.  These reasons for the mitigation of the penalty are well-known in legal circles, but I doubt they are well-known outside of legal circles or the additional mitigatory effect of a guilty plea made at this particular time.  

39Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently, and still do.  This has prompted the Court of Appeal in a case of Worboyes v R[12] to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time.  It is worth quoting a passage from the Court's judgment which shows the emphasis it placed on pleas of guilty in this time of restriction:[13]

“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.”

[12][2021] VSCA 169

[13] [2021] VSCA 169 at paragraph 35

Criminal history

40You have not previously been found guilty or convicted of any criminal offence.  You were of good character until about the age of 28.  It is not as long as some cases where greater weight is given to this factor.  Nevertheless, good behaviour for that period requires some mitigation of penalty.

Current sentencing practices

41Your counsel and counsel for the Director drew my attention to sentences of judges of this Court and judgments of the Court of Appeal.[14]

[14] DPP v Pennaneach [2021] VCC 806; DPP v Best [2021] VCC 1730; DPP v Xiao [2021] VCC 2018; DPP v Rowe [2021] VCC 780; DPP v Chang (a pseudonym) and Anor [2021] VCC 1869; DPP v Nguyen; DPP v Pham; DPP v Vo [2021] VCC 1160; Dukic v R [2021] VSCA 18 and Quah v R [2021] VSCA 164.

Rehabilitation

42Your prospects of rehabilitation are excellent.  You have the strong support of your immediate family, parents, sister and grandparents.  You are supported by friends.  You intend to live with your parents after your release from prison.  Psychologically, Mr Cummins thought your prospects of long-term rehabilitation were at least favourable.  Since he made no recommendation as to treatment, I infer Mr Cummins considered you no longer suffer from the Adjustment Disorder.  You have behaved well while in custody.  You have taken advantage of any course or programme on offer despite the restrictions involved with pandemic.  In your letter dated 13 July 2021, you speak of your determination not to return to the use of drugs.  As you say, "I will never again turn to drugs to numb my pain and feelings of hurt".

43Remorse forms part of your determination not to re-offend, particularly in relation to drug-taking and trafficking.  I accept you are remorseful.  So much emerges from your letter, the other letters of reference and the report of
Mr Cummins.

44Although you have been told of the availability of work on your release, I doubt the usefulness of that given the period of time you will serve before your potential release.  Nevertheless, you have a skill which is usually in demand.  One expects you will find employment readily in the building industry after your release. 

Prison conditions

45Most of your time in prison and for, at least, some of your sentence will be spent in the restricted conditions due to the pandemic.  Visits from your family and friends were greatly reduced.  However, you are in contact regularly electronically.  Your ability to receive books, magazines, clothes and personal items was also reduced.

Verdins

46You do not rely upon any of the limbs of Verdins v R[15].

[15] (2007) 16 VR 269.

47Although Mr Cummins diagnoses you as suffering from an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct at the time of your offending, there is only a hint at the effect of this disorder on your offending.  He says[16]:

“In this regard he acknowledged that after leaving work with Cre Liberia in July 2019 he effectively -"dropped my bundle and just got more into drugs#. At interview he also acknowledged that at the time of being dependent on illicit drugs and committing the offending with which he is now charged he knew what he was doing was wrong, but he felt "out of control".”

[16] Report of Mr Jeffrey Cummins dated 20 July 2021 at paragraph 34. .

48Although I suspect this disorder played a part in your offending, on the evidence, I cannot find that as a fact.

49Undoubtedly, your use of drugs accompanied your offending.  You were drug affected when intercepted by the police.  Your offending served two purposes: obtaining monies so you could repay your drug debts; and to obtain drugs for your use.  These matters explain but do not mitigate your offending.  The evidence is too imprecise to reduce your level of culpability.

Sentence

50On Charge 1, trafficking in a large commercial quantity of MDMA, you are convicted and sentenced to 7 years' imprisonment.

51On Charge 2, trafficking in cocaine, you are convicted and sentenced to 2 years' imprisonment.

52On Charge 3, you are convicted and sentenced to 4 months' imprisonment.

53On Charge 4, you are convicted and discharged.  

54The sentence on Charge 1 is the base sentence.  Six months of the sentence on Charge 2 will be served cumulatively upon the base sentence.  The sentence on Charge 3 will be served concurrently with the sentences on Charges 1 and 2.  The total effective sentence is 7 years and 6 months' imprisonment.  I will set a non-parole period of 4 years and 6 months' imprisonment.

55I declare the 915 days of your pre-sentence detention as time served under my sentences.  This finding of 915 days excludes today.

Section 6AAA

56If you had not pleaded guilty to the first three charges, I would have sentenced you to a total effective sentence of 10 years' imprisonment with a non-parole period of 7 years' imprisonment.

Disposal order

57I will make the disposal order sought by the Director.

Serious drug offender

58By convicting you on Charge 1, being a serious drug offence, I am required to declare you to be a serious drug offender.[17]  I make that declaration.

[17] S89DI of the Sentencing Act 1991.

Standard sentence

59I have departed from the standard sentence for Charge 1.  Apart from the gravity of the offence and your degree of culpability, factors personal to you have weighed heavily in my sentence.  The most important of those factors are your plea of guilty in the constrained circumstances in which it is made, and your excellent prospects of rehabilitation.

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