Director of Public Prosecutions v Milosevic
[2021] VCC 263
•15 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01389
Ind. L10975177
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Luka MILOSEVIC |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 March 2021 |
DATE OF SENTENCE: | 15 March 2021 |
CASE MAY BE CITED AS: | DPP v Milosevic |
MEDIUM NEUTRAL CITATION: | [2021] VCC 263 |
REASONS FOR SENTENCE
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Subject: Trafficking in a commercial quantity of drug of dependence (methamphetamine) in excess of two times the Commercial Quantity. Negligently deal with proceeds of crime. Possess Schedule 8 poison. No relevant criminal history. 27 years of age as at sentence. Early plea. Efforts at rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McCarthy | Office of Public Prosecutions |
For the Accused | Mr B. Murphy QC with | Doogue + George |
HIS HONOUR:
1Luka Milosevic, you have pleaded guilty to two charges on the indictment being one charge of trafficking in a commercial quantity of a drug of dependence and one charge of negligently dealing with the proceeds of crime. The drug was methylamphetamine. In addition, you have pleaded guilty to one related offence of possession of a schedule 8 poison.
2The maximum penalties are correctly set out in the Crown opening.
3You are 27 years of age and you have no relevant criminal history. That is of obvious importance.
4The matter was opened to me by the prosecutor in accordance with a written opening that was dated 15 January 2021. Your counsel told me that for all intents and purposes, it was an agreed opening and so it was marked as Exhibit A. I will sentence in accordance with it. His only reservation was that it did not contain your account of the offending. Well, it could not, as there was no account provided to the police.
5As is usually the position, there are some photographs which were contained within the depositional materials which displayed various things referred to in the summary. The drugs that were found, as well as scales and the money.
6You were arrested on the day of the offence whilst at the police station for another matter. The police had warrants to search your house and they found the various items referred to. It is clear though, that once arrested, you alerted them to the presence of the drugs off tape, whilst in transit to the house for that search to be undertaken. Police located the items disclosed in the summary, 117 grams of pure methyl amphetamine, some scales, empty Ziplock bags, and over $1,000 cash. Also the drug the subject of the summary offence.
7You made what was essentially a no comment interview as was your right.
8The agreed opening sets out the listing chronology. Your plea was plainly an early one.
9I have not gone into the full details of the summary but will sentence on the basis of the more complete agreed factual statement.
10It is accepted that this was serious enough offending.
In Mitigation
11You were represented by senior and junior counsel. Mr Murphy and his junior counsel had prepared some very detailed written plea submissions running to 20 pages. They conducted a comprehensive plea on your behalf. They relied upon a report from a treating psychiatrist Dr Talluri as well as a report from Mr Cummins. Further there were three CISP reports, a report from a drug and alcohol counsellor, a number of clean drug screens and a letter from your father. Mr Cummins and your father were also both called to give evidence before me.
12There was much material as to you background in the written submissions, the reports and the letter from your father.
13Your counsel made submissions as to the relevance of some mental health issues as well as the role played by your drug addiction.
14Your counsel have made a number of assertions as to your role, placing before me what, presumably, are your instructions to them. There is really nothing much to support that account at all and the decision was taken not to call you to give evidence. I will return to that matter later. It is not a matter of aggravation at all but of course, in so far as they were urging upon me mitigatory factual matters relating to your role, well, they have to be established on the balance of probabilities. They were not.
15Your counsel also made submissions as to your extensive efforts at rehabilitation. They were on far stronger ground on that score.
16In mitigation they relied upon the following matters;
· Your early guilty plea;
· The presence of remorse;
· The increased prison burden owing to separation from your family;
· The application of only one of the principles from the case of Verdins[1] being the fifth limb from that case;
· They made no submission as to the impact of COVID-19 but I extracted such a submission at the end of the plea fearing that it might have been overlooked.
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 CrimR 581
17They argued that the statutory exceptions set out in s.5(2H)(c)(i) and (e) were made out thereby removing the impediment to a non-custodial outcome. By way of explanation, the commercial quantity trafficking is a category 2 offence and absent proof of one of the matters set out in s.5(2H), a Court must make a custodial order under the relevant division, and one not in combination with a community corrections order. Your counsel were urging the court not to return you to prison but rather to deal with you by way of a community corrections order.
Prosecution
18Mr McCarthy, who appeared on behalf of the Director of Public Prosecutions, had prepared some succinct written submissions. I will not restate them all. They challenged the submission made by your counsel that you had brought yourself within either of the statutory exceptions in s.5(2H)(c)(i) or (e). They made some general submissions as to the seriousness of the trafficking offence and the principles of sentencing in play.
19They challenged the application of any of the principles from the case of Verdins. As it transpired, of course, only one of the Verdins' limbs was relied upon, being the fifth limb. That aspect was challenged by the Crown. They challenged any additional burden arising from concerns held as to your son or your mother. The Crown argued that the appropriate outcome here was an immediate prison term with a non-parole period.
Background
20I see no need to canvass your background in any detail here. As I said a short time ago, there is much detail on that score in the written submissions and the reports, as well as in your father’s letter. I have no reason to doubt the family background placed before me. I will act on it. You have had a pretty decent background and still have supportive parents. I say still as there have been some obvious tensions over the years, tensions arising mainly from your drug use and the impacts of that upon your mental health. You are now 27 years of age, born on 8 February 1994.
21You are one of three children and neither of your sisters has had any issues with the law. You were born in Brisbane but the family relocated to Melbourne when you were about 5. You have lived here since. There were some issues in primary school and you were seen by a psychologist. There is very little information about that. You completed year 11 and then obtained an apprenticeship. You started using drugs in the course of that apprenticeship and you were sacked. Drugs have been a major issue but not throughout your life. You have had an involuntary admission with drug induced psychosis back in 2014. That is not the only time there have been significant impacts arising from drug use. Your father’s sad letter documents your descent into drugs at later times and the obvious serious impacts upon you. You have been told of the need to maintain your prescribed medication and not to use illegal drugs. Your father comments on your failure to abide by the treatment regime and your inconsistency in taking the prescribed medication. Mr Cummins said that it was a bad mix. No doubt that is true.
22In the lead into your arrest last year, there had not been that much by way of actual treatment. There has however been much by way of counselling and treatment since you were bailed and I will return to that very positive material later. There have been some mental health issues spoken of in the report of the psychiatrist Dr Talluri and in Mr Cummins’ report. Each refer to a diagnosis. You have had decent periods of employment but it had been at times intermittent earlier in your life at least. Generally though, it has been a decent employment record.
23You formed a relationship with another addict and had a son together. That child is now five and a half years old and you have had ongoing and meaningful contact with the child, who has some issues himself which are described. Since the birth of your son, your employment picked up. You separated from the mother in 2017. There were some stressors in your life in 2019 and you resumed drug use. In fact, unwisely, you quit your job in August 2019 and drug use picked up. So by late 2019, you were not taking your prescribed medication consistently and you were using illegal drugs. You were not working. As I say, your father’s sad letter documents the erratic life you were then leading. Well, your parents could not force you to get treatment. You were not a child.
24You have only one appearance before the courts and it is of no relevance to my task at all. It simply impeded your counsel from saying that you had never appeared before a Court. I put aside that past matter. It does not inform my task in any way. I will treat you as a first offender.
25I have the various material placed before me as to your efforts on bail. Again , I just see no great need to restate it all in these reasons. The reports set out your very many attendances on a variety of practitioners. You have plainly done very well on the CISP bail and beyond. Ms Young says in the final report that it is uncommon to see someone so well engaged and committed to treatment and support and to be so genuinely invested in improving himself on so many levels (see p. 5). Your engagement is described as exceptional over an eight month period and I do not ignore that fact. You have had ongoing drug counselling and that was extended by you on a voluntary basis. Again that is a positive. There are a number of clean unsupervised urine screens. Also some random ones pursuant to Department of Health and Human Services requests. Your father also speaks of the large lift in your effort and your state.
26You have really not put a foot wrong since being bailed.
27Of course, I take all of this material into account as I must make some judgments as to your prospects of rehabilitation as well as the risk of reoffence and the extent of the need to pay weight to specific deterrence and community protection. The efforts which you have made are not to be ignored. Your efforts are much to your credit. If rehabilitation was the only purpose of sentencing then my task would be far simpler. I take into account your efforts but regrettably you have committed a serious crime and rehabilitation is not the only purpose of sentencing. Not by a long shot.
Verdins
28Your counsel made some submissions as to the application of the fifth limb of Verdins. They were explicit in relying only upon the fifth limb, a submission which sat quite uncomfortably with the submission which was being made to me as to your falling within the exception set out in s.5(2H)(c)(i). To attract that exception, there must be impaired functioning causally linked to the offence which substantially and materially reduces culpability. No doubt there would be many people who may attract application of the first limb of Verdins and yet not come even close to satisfying the high burden to be carried in s.5(2H)(c)(i). That is because a Verdins limb 1 reduction only requires a realistic connection. That is a mile from a substantial and material reduction. Many limb 1 Verdins' claims will not rise anywhere near that high. However, I cannot see how it could be possible to fall into the exception created by s.5(2H)(c)(i) if there is no Verdins limb 1 claim at all, as here. I will return to this aspect later in my reasons.
29I am prepared to act on your counsel’s explicit submission as to the application only of limb 5 from the case of Verdins and to act on the explicit disavowance of any of the other limbs having any role to play in my sentencing task.
30I should say that I have considered the matters afresh since the plea to ensure that this concession was well made. It was.
31Not that a limb 1 submission was made, indeed, as I say, it was specifically disavowed, but I do not believe there is any nexus or connection between your mental condition and the offending. I am not satisfied of that on the balance of probabilities. You had some mental health issues as spoken of in the two expert reports. You have also used drugs, sometimes greatly to excess, and with dire enough consequences with one, and likely more than one, presentation for a drug induced psychosis.
32The reports speak of your underlying condition, and the notion of ‘self-medication’ which is so often spoken of in this court. Drug use disinhibits you and reduces your control and also generates the need to obtain drugs or the money for drugs. Mr Cummins in his evidence spoke of drug use being a substantial cause of your offending. That was of course based on your account of the major offence being committed to obtain drugs.
33People turn to drugs for a variety of reasons. You did that many years ago. You have been told of the importance of abstaining from illegal drugs, not just that, but also of the importance of taking your prescribed medication. As your father’s letter makes plain, you choose to ignore that advice from time to time. This notion of self-medication is greatly over-rated and cannot be of any mitigatory value as far as I am concerned. There is no nexus between your diagnosed conditions and the offence.
34In any event, what role did drug use and addiction to drugs actually play in relation to this offending? This is a commercial quantity trafficking charge. I am in no way satisfied on the balance of probabilities that it was driven purely by your addiction. I do not accept any of the submissions made to me as to your role.
35Your drug use may had had some role but as far as I can glean, your offending was not driven by it, or by the major depressive disorder or bipolar disorder. You were in possession for sale of over two times the commercial quantity of methylamphetamine by the pure measure. You had scales, Ziplock bags, and over $1,000 cash. I am not satisfied that this offending has anything to do with the disorders that you suffered. I am not satisfied of any Verdins basis to reduce your culpability, or to give less weight to general or specific deterrence. Nor was any such matter relied upon by your experienced barristers. Nor does the material before me support the submission that there is any sizeable increased burden or any likelihood of serious and significant deterioration of your condition. You are worried about your predicament and the position of your son and your mother. Those are not Verdins considerations though I do not ignore them. You feel your mental health will decline and Mr Cummins agrees that is likely. But I do not believe the evidence rises to the level where the sixth limb of that case is made out. Again, explicitly, your counsel disavowed any reliance on that limb. Undoubtedly though, you have the major depressive or bipolar disorder and I am prepared to find some modest increased burden arising from those conditions spoken of. So it is a modest fifth limb allowance.
36You were silent to the police as to your role, as was your right. There is nothing by way of any detail in your account of the offence to Mr Cummins or to the psychiatrist. You were not called on the plea to provide any evidentiary foundation to the submissions made by your counsel as to your role.
37I am not, by the way, saying the expert materials are unimportant. I take into account the fact that you have and have had these mental health issues, just not in a Verdins fashion, other than in the fifth limb fashion that I have described. No doubt they may have some role to play in your taking drugs. That is not mitigatory. It is plain enough that one with your mental health conditions derives no benefit at all from using illegal drugs. You know that. You choose to take drugs and not to follow medical advice. I do not treat that as an aggravating feature. Before leaving this area, let me just say something about how the plea commenced. This plea was adjourned in early February with your solicitor explaining that you had been seen at that stage by a forensic psychologist and she was awaiting that report. The arrival of the report was said to be imminent. That psychologist was Mr Cunningham. Mr Cummins' engagement took place on the 25 February, well after that correspondence, and I wanted to satisfy myself that the Court had not been misled in relation to the adjournment application. Well, the matter was explained by your counsel and it was clear the Court had not been misled. I was told that a decision was made not to use Mr Cunningham’s report, that the report was in some way unsatisfactory. It was accordingly not provided to the Court. That course was entirely open to your legal team. The Court cannot direct which material will be relied upon and which will not. That decision is one taken by your legal team. It is their decision. However, I must say, it strikes me as unusual that the report was not provided at all to Mr Cummins who did assess you. Anyway, I put that aside altogether.
38Let me turn to some of the other matters that have been raised on your behalf, firstly, to your guilty plea.
Guilty plea
39You have pleaded guilty at the earliest opportunity. I take that into account in your favour. You have facilitated the course of justice. You have taken that earliest responsibility for your crimes. The community has been saved the time, the cost and the effort associated with a committal in the lower court or a trial in this court. Witnesses have been spared the experience of giving evidence. There is a utilitarian benefit in pleading guilty. I take it into account. I take into account your early guilty plea in the way urged upon me by your counsel and must pass a lesser sentence owing to these various matters. This case resolved amidst the disruption of the operation of the courts arising from the COVID-19 virus and is worthy of extra recognition. I also take into account your co-operation with the police. Though you made a predominantly no comment interview, as was your right, you had in fact alerted the police in the course of the journey to your house of the existence of the drugs. So I take that cooperation into account in your favour.
Remorse
40Your counsel argue that you are remorseful. A guilty plea is usually indicative of at least some remorse. There is other material touching upon this including references in the expert reports and your father’s letter. Mr Cummins spoke of it as well. I have your impressive efforts on bail and the view of the CISP supervisor as well. I am prepared to find the presence of some remorse in this case and I take that into account in mitigation.
Rehabilitation
41Your counsel submitted that you had very good prospects of rehabilitation. Mr Cummins thought they were favourable, most probably, very favourable. Your counsel was relying on the CISP reports, the alcohol and drug report, the expert reports and the urine screens. Also, your father’s letter. I have read all this material again since the plea. It is an impressive collection. You have undoubtedly done very well on bail.
42I do not ignore your efforts. They have been very impressive and that is so whether the case was looming on the horizon or not.
43However, you were not some silly teenager committing these crimes. There was obviously enough some planning here, whatever your counsel may be suggesting. It was a calculated decision to take a sizeable risk. You have had long term issues with drugs, and a past inability to meaningfully address them. Your recent efforts are, of course, far more encouraging. You have family support and no relevant criminal history and you are still young enough. You do not suffer from any antisocial or other personality disorders. That is a plus.
44As to youth, well as I say, you were no silly teenager. The more serious the crime the less weight can be afforded to youth. You are though, still young enough, and one with no relevant past history and with the excellent efforts whilst on bail. I judge that you have positive prospects, good if not very good, but they will be very much conditional upon abstaining from drugs and following guidance from your mental health practitioners. The very things that have caused problems in the past. If you do not do that in the future, your prospects of rehabilitation would sharply dip. But I am encouraged by the steps you have taken and presently I hold a positive view of your future prospects.
COVID-19
45The impact of COVID-19 was not mentioned in your counsel’s written submissions but I could see no reason why it ought not apply in your case as it has in so many others that I have dealt with. Fearing that it may be overlooked, I extracted a COVID-19 submission from your counsel. The COVID-19 virus and the response to it by those running the prisons has increased the prison burden. Prison has been a more stressful environment. Social distancing has not been easy. No doubt there is worry about catching the virus in such a setting where there is no level of autonomy. You spent 42 days in custody last year with the 14 day quarantine isolation period. Also the lack of visits in that period.
46As to what lies ahead, it is very hard for me to know. That uncertainty is not that easy for you and I take that into account. The impacts of the virus upon prisoners had been lessening, with visits resumed and courses getting back underway but we are obviously experiencing ups and downs. There is still a 14-day quarantine period which has applied to you again. That is a tough start. The events of the last month or so with the so called ‘circuit breaker’ lockdown and the temporary suspension of visits shows that whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may start up again. There will be some ongoing anxiety amongst prisoners as to how they will fare. I take that into account. However, I cannot know if limitations will persist and must not speculate, and if they do, and your prison experience worsens significantly, we know that there is the potential availability of the Emergency Management Day declarations. I take into account the impact of the virus.
Custodial Burden
47You have a meaningful role in the life of your son. He is but five and with some issues. As I understand it, you have been taking him to therapy and you see a lot of him, typically having him over the weekend when he stays with your family. I cannot take into account any impact upon him arising from your imprisonment as that would require proof of exceptional hardship and it is accepted by your own counsel there is just no evidence in support of that. Well, you will be imprisoned, as you know and will know that you will not be able to assist or provide for your son. There is no reason for me to doubt that you will worry about his predicament. That is surely a very common thing for a prisoner being sent to prison. The prosecution challenge any additional burden over and above what is experienced by any prisoner with young dependents. Well, I do accept that many prisoners have dependent children. It is not a large matter in mitigation by any means, but I am prepared to find a slightly increased prison burden in your case. There is also the issue as to your mother and her illness. Again I have no reason to doubt that this will cause you some worry. I do not believe there is any sizeable increase in burden arising from these matters relied upon in this case but I am prepared to take them into account in a modest fashion.
The Offences
48Your counsel made a number of submissions as to the gravity of the offence and submitted that this example fell at the low if not lowest level. He was referring to the commercial trafficking, see paragraph 43(a) to (i). and 80(f). That submission cannot be accepted for a variety of reasons. One reason is that the argument proceeded on the assumption that I should just accept your instructions to counsel about your role. I do not. I expressed my provisional concerns as to your account and your counsel’s submissions and the absence of evidence in the area. There was no account from you on any of these topics. This talk of your being some poorly rewarded middleman taking the drugs from point A to point B for a small quantity of drugs was without any evidentiary support at all. No evidence was called either, despite my concerns being flagged. I am not satisfied on the balance of probabilities of any aspect of your account.
49So what do I really know of your crime? Well, one thing I do know is that you possessed the drugs for sale. That is the basis of the trafficking. I am not satisfied it has any realistic connection to your mental health conditions, I have already spoken of that. Nor am I even satisfied on the balance of probabilities that drug use was the driving motivation behind this offending. You had the cash, over $1000. I do not improperly expand the dates of the trafficking charge and find against you some earlier misconduct. That is not the way the matter is put. I am however dealing with you for the proceeds of crime charge. I have the cash, the empty Ziplock bags, the packages of the drug, the quantity of that drug being over two times the commercial quantity and the scales. Your counsel suggested at point 43(e.) the absence of evidence suggesting any past acts of trafficking. He seemingly ignored or overlooked the question put by police in the interview as to the messages found on your phone (see Question 150) but that material has not been put before me. In any event, I am dealing with you only for trafficking on the day of the search so even if that material is there on the phone, I could not really have any meaningful regard to it. If the Crown wanted to expand the trafficking dates based on other material to hand, well, of course they were free to. They have not done so. The presence of the money casts some real doubt on the suggestion that you were trafficking to support your own habit and that you were only doing so by transporting the drug from A to B for some minimal amount of the drug and not for money. The cash exists as a matter of fact and bears upon the suggested need for other cash. See the case of Ververis[2].
[2] [2010] VSCA 7 at [35]
50So I am not satisfied on the balance of probabilities that this was trafficking to support your own need at all. I am not satisfied on the balance of probabilities that you were some middleman or merely transporting the drugs with no monetary reward contemplated. As is very often the case, it is very difficult for me to make any meaningful judgment as to your role. Your counsel falls into the fallacy of assuming that in those circumstances, the default setting is the most modest and mitigatory setting which can be imagined or constructed in argument. That is not the way these things work, as the Court of Appeal spelt out very clearly in the case of Dao[3].
[3]Dao v The Queen [2014] VSCA 93
Purposes
51I have to consider a number of purposes of sentencing. Rehabilitation is one such purposes and I do not ignore it. I have commented on your excellent efforts on bail and they give me some real cause for optimism. I give rehabilitation more weight than I would, absent those efforts, make no mistake about that. The community has an interest in rehabilitation as it needs no protection from an offender who is rehabilitated. I am anxious about disturbing your ongoing rehabilitation but I have no choice here. Rehabilitation is not the only purpose of sentencing.
52Punishment is an important sentencing purpose here for this style of crime and by that I am referring to the commercial quantity trafficking charge. I must justly and proportionately punish you as well as denouncing your conduct strongly.
53Community protection is also of some importance.
54I must also deter you and others from offending such as this. These concepts of general and specific deterrence are of some importance.
55As to specific deterrence, I must deter you from future offending. That purpose would be given far more weight had you a relevant history before the court or had you not performed as well as you have on bail. It still must be given some weight. I cannot just ignore it. The same can be said of community protection. These things would be given far greater emphasis if you had offended in a similar way in the past or had lesser future prospects, but that is not the position.
56General deterrence is however an important purpose of sentencing in this sort of case. That is, the need to deter others from offending in the future.
57Illegal drugs have had a devastating impact on our community. They cause untold misery to the many who use them and to the families of those who use them. They destroy lives. Those who make the decision to traffick in a commercial quantity of drugs really should not expect much by way of leniency.
58People such as you who traffic in drugs in a commercial quantity are almost always taking a calculated risk. I am sure you were. They hope that the potential rewards will justify that risk. They hope not to be caught.
59The seriousness with which Parliament regards drug trafficking can be gleaned from the very large maximum penalties provided for. This Court must seek to deter other future likeminded offenders from committing this serious offence.
60I must pay regard to current sentencing practices though that is not a single controlling factor.
61I have looked at the relevant portions of the Judicial College of Victoria Sentencing Manual (see JCV Sentencing Manual – Case Summaries at 7.3).
62Your counsel referred me to the sentencing snapshot held in this area.
63I had already looked at the Sentencing Advisory Council Snapshot No. 244 of 2020 dealing with this offence. The most common range of sentence imposed in the period in which the data was kept fell in the band between four to less than five years.
64Statistics though are always of very limited use. I am not sentencing you as a mathematician or statistician. I am exercising a judicial discretion.
65I had also looked at the Court of Appeal decision of Gregory[4].
[4]Gregory v The Queen [2017] VSCA 151
66The Court of Appeal concluded in that case that the current sentencing practices for serious examples of commercial quantity trafficking were inadequate.
67There has to be some caution then in looking at any sentences imposed prior to that decision or for that matter, the data contained in the statistics which predate that decision. The Judicial College of Victoria Sentencing Manual at 7.3.1.1 says as much.
68The Court of Appeal in Gregoryidentified features which would lead to the expectation of sentences advancing well into double figures. See paragraph [98]. There were a variety of matters which the Court of Appeal said would lead to far greater sentences being imposed in the future in serious examples of this crime.
69Plainly, they were focusing on upper category offences.
70They went on to say that had they not been constrained as they then thought they were by current sentencing practice, a sentence of 13 to 15 years would have been in the range on a guilty plea in that case rather than the eight and a half years which had been imposed. These were very high numbers indeed and signalled from our highest court a very different range of sentences into the future for some commercial quantity traffickers. I hasten to add, some, but not all.
71I am not for one moment suggesting that you are on all fours with Gregory. You plainly are not.
72As I have said, I am exercising a sentencing discretion. I am sentencing you for your crimes and that is not some mathematical task, or one where the outcome is dictated by what has happened in other cases, or by what the statistics might disclose.
Offence gravity and role
73I have to make a judgment as to the gravity of your offending and I mentioned earlier in these reasons my rejection of your counsel’s arguments as to this offending falling at the lowest or at a low level. It plainly does not. The weight of the drug is a fixed matter and the case law makes it clear enough that the quantity of drug is undoubtedly a matter of real importance. It is not the only matter, of course. The commercial quantity here was 50 grams pure. The fact is, you had over two times the commercial quantity by pure weight. So 117 grams pure, with a large commercial quantity threshold fixed at 500 grams pure. So this is not a case of just scraping in over the threshold of commercial quantity. You have more than twice the commercial quantity. This is a quantitative-based regime. The harmfulness of the given drug is not a matter for me to consider because, as I have said, it is a quantitative-based regime. That is why the quantity is important.
74In Haddara[5] the Court of Appeal spoke of the prevalence of the offence of trafficking in methylamphetamine and the need to elevate general deterrence.
[5]Haddara v The Queen [2016] VSCA 168
75Duration is what it is. One day. Your counsel relies upon this almost as being a matter in mitigation. It is not. On the 22nd April of last year, you were trafficking in a commercial quantity of this drug, as you were on that day in possession for sale. It is clear that you do not fall to be sentenced for events before that date. If there had been earlier transactions embraced by a between dates charge that would most likely be a more serious instance of the crime. But it is not mitigatory that you are in possession for sale on the day of your arrest. You stand to be sentenced for the trafficking on that date. That is very often the case when a drug is seized.
76Sometimes there is a duration of offending alleged. Sometimes there is material touching upon role, scale, duration and hierarchy.
77There is sometimes material touching upon the dimension of the past financial gain and that which is contemplated into the future.
78As I have said already, I am not satisfied on the balance of probabilities of your account or the submissions based on it, to put it more accurately, as I have no account from you at all. Those matters were raised as matters in mitigation and I am not satisfied of them. There is no sound basis to accept the submissions made as to your role. Mitigatory facts must be proved on the balance of probabilities. These mitigatory contentions as to your lowly role are not made out on the civil standard, in my view. See the case of Dao (JJA Nettle and Redlich's judgments).
79So, you had in your house two times the commercial quantity of methylamphetamine in a number of bags, you had cash, you had the scales and a number of empty Ziplock bags. There is no reason for me to think you were some minor or insignificant or transient player. I have no doubt at all that as is usually the case, financial gain was the motivation here. I am satisfied of that beyond reasonable doubt. I do not know exactly what sum you hoped to obtain but it was surely big enough for you to justify the large risk that you knew you were taking.
80A court will always try to understand the role of an accused, but sometimes the court is simply not able to identify the precise role. That is actually quite common in drug prosecutions and is the position here.
81As is often enough the position in this sort of case, I will never know the full details of your involvement.
82There is however, no material as there sometimes is, filling in any of the gaps here. What I do know is that on the day in question you and you alone possessed these drugs for sale. There is no evidence before me disclosing the involvement of any other person at all. There is no material demonstrating your lesser role or the claimed minimal connection raised on your behalf by your counsel.
83There is no Verdins' type or other reduction in your moral culpability here.
84You knew exactly what you were doing. You knew the risks. I have no doubt about that at all.
85I have already spoken of the quantity of the drug. Though comfortably exceeding the commercial quantity, it is still not a particularly large actual quantity by way of gross weight. But I cannot ignore the relationship to the commercial quantity and the extent to which that was exceeded. I have mentioned the case of Gregory. I believe some of the general statements of principle apply but I will certainly not treat you as falling into the upper categories of offending. Bear in mind though that the upper categories may command sentences in the mid-‘teens’ on a guilty plea. I do not find you to fall in the upper category of offence. However you are not at the bottom of the tree. Your offending falls above the lowest levels, plainly so.
86I have the excellent efforts you have made on bail, the absence of prior history and my favourable conclusion as to your future prospects. As I said before, I am not suggesting for one moment you fall at Gregory’s level. He had a between dates charge with evidence of significant past trafficking, enrichment, high profit, a highly organised business structure with intimidation, violence and interstate movement of drugs. Your case is really quite different.
87Your offending though was still serious.
88I have scarcely mentioned the other indictment charge, or the relevant summary matter. They are the least of your worries and the summary matter does not even command a prison sentence. The trafficking charge is the most serious offence by far. It has a 25 year maximum term.
89Prison is always a disposition of last resort.
The Legislative framework for Category 2 offences.
90In this case though, there are some very strong legislative statements that fetter my discretion in a case involving a category 2 offence, which commercial quantity trafficking is. It is not for me to agree or disagree with the intent and effect of the legislation. That is not my role at all. It is my task to follow and apply the relevant law. The commercial quantity trafficking charge, as I say, is a category 2 offence. In the absence of establishing one of the matters set out in s.5(2H), I must send you to prison for that offence. I cannot combine a prison sentence and a community corrections order on that charge unless you fall within one of the exceptions. The short answer is that you do not, but I must say more about it, given the arguments placed before me.
91Your counsel relied on two of the exceptions. Section 5(2H)(c)(i) and (e). The first requires proof on the balance of probabilities that at the time of the commission of the offence you had impaired mental functioning that was causally linked to the offence and which substantially and materially reduced your culpability. There was of course no such thing on the evidence placed before me and I really do not know why your counsel pressed this point. Mr Cummins had given evidence. The report had been received. Also the report of your treating psychiatrist. There was nothing in those reports or the evidence rising to this level and nothing in Mr Cummins’ evidence taking it any further. I asked Mr Cain to spell out the steps that he required me to follow. They were as follows: You suffered from bipolar/or a major depressive disorder at the time of the offence. I interpose, I am prepared to accept that you did, as the evidence goes in only one direction on that topic.
92The next step is to make some judgment as the qualities of such disorders and what is ‘commonly’ suffered. Mr Cain submitted that those conditions have as hallmarks, periods of sporadic or unpredictable behaviour. I interpose, no evidence was led on that topic. The next step was to say that it was open to the court to infer that at the time of the offence, you may have been afflicted by one of those ‘symptoms’ of the condition and hence to conclude that you may have been acting impulsively. It was a submission really that had no great merit. Speculation upon speculation and not even the subject of the evidence led before me from Mr Cummins who asserted in his opinion that the drug use was heavily implicated here. There was no suggestion of impulsivity derived from your mental health condition. Had there been, presumably your counsel would have been relying on more of the limbs from the case of Verdins but they very explicitly were not. They were not relying on the first limb of that case at all. As I said earlier, that would surely be fatal to any finding as to a causal connection between mental impairment and the offence and one which was substantial and material in terms of reduction of culpability.
93Even if satisfied of the matters set out in s.5(2H)(c)(i) (and I am not by a long shot) subsection (2HA) would have come into play very squarely here. The evidence from Mr Cummins was that your drug addiction was a substantial cause of the offending. You were using daily on a large enough basis and that had substantial or significant impact upon you. On the expert materials, the drug use had escalated, you were using very heavily and that impacted on your capacities, not the mental health issue. So it is well removed from any meaningful or realistic connection and by the way, in terms of the connection required for s.5(2H)(c)(i) there must be the causal link to the offence (which there is not here) but also one that substantially and materially reduces your culpability. That does not exist here. Secondly, even if I was wrong in each of those conclusions that there was no causal connection causing a substantial and material reduction in your culpability, plainly s.5(2HA) would pose some problems to you. I believe the attempt to bring you within the exception in s.5 (2H)(c)(i) fails at every step.
94As to the next provision, the plea took a far stranger turn. I asked Mr Murphy about s.5(2H)(e) and the written submissions setting out the constellation of factors that he urged the court to take into account. It seemed to me, at least, that most of those matters were hardly unusual. Further, there were matters set out and relied upon which seemed to ignore the clear legislative prohibitions set out in s.5(2HC). There was some dialogue between the bench and counsel and Mr Murphy said of those matters in paragraphs [80](i) and (m) in his written submission that it was really a matter for the court as to whether the court had regard to those matters. I said that I did not believe was the position at all and suggested that the legislation specifically prohibited consideration of those matters, being prospects of rehabilitation and an early plea. See s.5(2HC)(c)(ii) and (iii). Mr Murphy did not agree with my view of the legislation, but really would not tell me why he did not. It was puzzling, I must say. The statute is of course quite clear. It would be preferable for counsel not to include in the matrix of matters relied upon, items which are specifically ousted from the court's consideration by s.5(2HC) of the Act. Indeed, counsel have an obligation to prevent the court from falling into error.
95Most of the matters that are legitimately set out are actually not that unusual. Whether viewed individually or in combination, they could in no way be described as substantial and compelling circumstances that are exceptional and rare and justify not imprisoning you. These are very strict provisions with a very high threshold. It is a stringent test and deliberately so. See the case of Farmer[6]. The words should make that plain as well as the amendments which have taken place over the years. Substantial and compelling is a high enough bar. Add in, that are 'exceptional and rare' and the test is very obviously designed to be stringent. That you are a drug user and addicted is hardly unusual. Nor this notion of self-medication or that it is a single date trafficking. I do not accept the contention that it is offending at the lowest rung or that you were not to gain monetarily. Those matters are set out in (f) and (g). The fact that you have spent time on remand is by the by. Very common indeed. In making the judgment as to whether the substantial and compelling test is established I must regard general deterrence and denunciation as having greater importance than other principles. I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence and I must have regard to Parliament’s intention that ordinarily for a category 2 offence, a prison term is to be imposed. I have to consider whether the cumulative impact of the circumstances of the case would justify such a departure from such an order. See s.5(2I). Having reviewed the various matters which are relied upon in support of the exception in s.5(2H)(e), I am not remotely satisfied that you fall within the exception. I accept that the evidence of your rehabilitation is strong in this case, but I am specifically precluded from considering rehabilitation when considering this exception. That is the effect of s.5(2HC)(c)(iii).
[6]Farmer v The Queen [2020] VSCA 140
96It follows then that I must imprison you. You have served a period in prison already but plainly that is not adequate.
97It is very obvious that the only appropriate outcome is to imprison you and for a duration that requires me to fix a non-parole period. I am going to make a decent allowance here and fix a non-parole period which undoubtedly would be less than otherwise would have been the position and that is to reward your strong efforts at rehabilitation to this point. Though I must not have regard to rehabilitation when considering if you fall into the exception created by s.5(2H)(e), it is quite a different thing when I consider the ultimate sentence and the appropriate non parole period. At that point I can have regard to this evidence. Of course I am anxious about interrupting your rehabilitative steps and no doubt, for a less serious criminal offence, the case might have ended more happily for you. Regrettably though, you have chosen to commit a serious crime punishable by a maximum of 25 years' imprisonment.
98I must not take into account whether or not you will be released on parole. I must assume that you will serve every day of the head sentence I will soon pronounce. As matter of law, I must fix a non-parole period. The Adult Parole Board will make the decision as to whether you can be released. That has got nothing to do with me at all.
Totality
99I take into account the principle of totality of sentence.
100I must consider whether the effect of the sentence is just and appropriate and commensurate with your overall criminality. The criminality here was high. The most serious offence by a long shot is the commercial quantity trafficking charge. The proceeds of crime charge is obviously far less serious.
101I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you. However, a sizeable enough prison term is demanded here by your crime.
102The trafficking and the possession of proceeds of crime all occurred on that single day. They are different offences with differing elements. There would be some legitimate basis for some cumulation of sentence, but I have taken the view that in recognition of the principle of totality, that I should run the sentences concurrently. The summary offence is not even punishable by a prison term.
Forfeiture
103There are two ancillary orders that are sought in this case and they are not objected to. The first of those is a forfeiture order under the provisions of the Confiscation Act, seeking the forfeiture of the cash. I am satisfied that the preconditions for the making of that order are established and I have signed that order and I direct that the property referred to be forfeited to the Minister, in accordance with that signed order.
Disposal
104The second is a disposal order relating to the Ziplock bags and the drugs, including the poison, the subject of the relevant summary matter. Again, I'm not going to go through the full details of the order, I am comforted by the fact there is no opposition to the making of it. Obviously the preconditions for the making of the order under s.78 of the Confiscation Act arise here. I am satisfied that it is appropriate to forfeit to the State the property referred to and I direct that it be handled in the manner contemplated by the signed order.
105I am sorry to have taken so long to get this point, Mr Milosevic and I am sorry also to be doing this by way of video link, it is a very impersonal way of sentencing someone, I am afraid, but we still are encouraged to minimise the number of people coming into this court amidst the COVID-19 pandemic.
106If you were in court, I would get you to stand up, but I am not going to that sentencing you over the Webex. I will have you remain seated.
Sentence
107On Charge 1, so that is the charge of trafficking in a commercial quantity of methylamphetamine, I convict and sentence you to three and a half years’ imprisonment. That is the base sentence.
108On Charge 2, the charge of negligently dealing with the proceeds of crime, you are convicted and sentenced to two months' imprisonment.
109On the related summary offence of possession of a schedule 8 poison you are convicted and fined $400.
No cumulation
110As I have said, the two month term on Charge 2 will be served concurrently on the base sentence. I have mentioned that earlier
Total effective sentence
111So what this produces then is a total effective sentence of 42 months or three and a half years' imprisonment
Non-parole period
112I fix a period of 21 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
113You have already served 55 days of this sentence by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
114I have told you I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have sent you to prison for six years. I would have fixed a non-parole period of four years in those circumstances and that declaration is to be entered into the records of the court.
115Let me just check to see if there is anything else I need to deal with. Firstly, Mr Cain, anything from you at all, or not?
116MR CAIN: Nothing arising, Your Honour.
117HIS HONOUR: Mr McCarthy, any other matters I need to deal with?
118MR McCARTHY: No Your Honour.
119HIS HONOUR: All right. Mr Cain, I don't know how long we have got the video link for, but presumably you'll be making some arrangement to speak to Mr Milosevic in a private setting, is that so, or not?
120MR CAIN: I will be, together with my instructor Ms Kothrakis.
121HIS HONOUR: I was just really going to ask, I'm not sure how long we've got the link for, just bear with me.
122MR CAIN: Sure.
123HIS HONOUR: We've got the link for a little bit longer. I'm not suggesting it's to be used for any sort of substantial conversation about what's occurred here today, but I'm happy enough, if you want to use it, for you to use it very briefly, to have a brief chat to your client, just to tee up the next step for him, but it's up to you really. What - - -
124MR CAIN: Sure. Thank you, I'm grateful to the court, but my instructions are that a conference is being arranged with the prison.
125HIS HONOUR: Yes, it's much better and look, he's hearing you say that. The fact is, any discussion here won't be in my presence obviously, but it's not private and my staff would be here and that might be a problem. All right, that completes the matter. Nothing else from either of you then?
126MR CAIN: No.
127MR McCARTHY: No Your Honour.
128HIS HONOUR: So Mr Milosevich, you've heard that. Mr Cain will be in contact, or his solicitors will be in contact. They'll be organising a conference with you, to have a chat about what's occurred here today and your rights in relation to this sentence. So you'll expect to see them in the not too distant future, all right? There's no need for any custody management sort of directions at this stage, because I think they were previously made, weren't they?
129MR CAIN: I think they were canvassed on the previous occasion, Your Honour and anything that would need to have been taken into account probably has been already.
130HIS HONOUR: Yes.
131MR CAIN: If there's anything further, we can just discuss that with Mr Milosevic.
132HIS HONOUR: All right, great. That completes the matter then. I'm going to adjourn the court. Once I've left, no doubt the Webex will be disconnected, but I'll adjourn the court to 9.30 tomorrow then. Thank you.
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