Director of Public Prosecutions v Moore
[2021] VCC 1720
•1 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-00878
Indictment No. L12456397
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT MOORE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2021 | |
DATE OF SENTENCE: | 1 November 2021 | |
CASE MAY BE CITED AS: | DPP v Moore | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1720 | |
REASONS FOR SENTENCE
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Catchwords: between dates trafficking in commercial quantity (methylamphetamine) - Trafficking in 1-4 Butanediol, possess drug of dependence (x3 ecstasy, ketamine and diazepam) - Knowingly deal in proceeds of crime (over $450,000 cash) related summary offences - rolled up possess prohibited weapons, possess poison, deal property suspected of being proceeds of crime (US currency) and unlawful possession of explosive (fireworks) - No prior criminal history - 38 years old now, 37 at time of offence - Early guilty plea – COVID-19.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Mr L. Cameron | Bowler Man & Co. |
HIS HONOUR:
1 Scott Moore, you pleaded guilty last Thursday, 28 October to one charge of trafficking in a commercial quantity of methylamphetamine, one charge of trafficking in 1,4-Butanediol and possession of three other drugs of dependence being ecstasy, ketamine and diazepam. There is also a charge of knowingly dealing in the proceeds of crime relating to over $450,000 in cash. Finally, there are a number of related summary offences. There is a rolled-up charge of possession of various prohibited weapons, a charge of possession of poison, one charge of dealing in property suspected of being the proceeds of crime and a charge of unlawful possession of an explosive.
2 You have no criminal history at all.
3 You are 38 years of age.
4 The summary correctly sets out the various maximum penalties. The most serious offence is the commercial quantity trafficking. It has a 25-year maximum penalty. The maximum penalty for possession of a drug of dependence is dependent on whether an accused can satisfy the Court that the possession was in no way connected to trafficking in that substance. If so satisfied, then a lower maximum penalty of 12 months' imprisonment applies. Otherwise, there is a 5-year maximum term of imprisonment. The Crown seem to accept that the lower penalty provision applies to the possession of the ketamine, so that is Charge 5 on the indictment. I am prepared to act on that concession given the small quantity involved and your explanation given to the police. In fact ultimately, I take the same view of the maximum penalties for the two other offences of possession of a drug of dependence. They are small enough quantities and though one exceeds the traffickable quantity (that is the ecstasy) and there are over 45 tablets containing the diazepam, I do have your account to the police. I will then act on the lower maximum penalty applying for each of Charges 3 through to 5 on the indictment. I said on the plea that in the scheme of things, those charges of possession of a drug of dependence are the least of your worries and that is true and frankly, that would be so whatever the relevant maximum penalty was for those offences.
Facts
5 Ms Zammit appeared to prosecute on the plea and she relied upon an amended written summary of prosecution opening dated 25 October 2021. Your counsel Mr Cameron told me it was an agreed statement and that document was marked as Exhibit A on the plea.
6 In such circumstances, I see no need to set out the full sentencing facts in these my reasons. I will sentence pursuant to that agreed summary.
7 By way then of only a very brief summary, in mid-2020, police were conducting a major drug investigation focussing on a man named Dylan Graue. You were identified as supplying drugs to that man and you were then included in the ongoing investigation. The summary describes the handful of covert purchases made from 28 August 2020. The arrangements commenced with Graue acting in some way at least, as your intermediary. No doubt when satisfied that it was safe for you to do so, you then dealt directly with the person you believed to be the purchaser but who in fact was an undercover policeman. A larger transaction was ultimately organised for 15 October for 112 grams of ice for $38,000. Arrangements were made to meet.
8 You were arrested in the foyer of your Docklands apartment building. Various items were found upon a search of you, your apartment and your car. You had the 112 grams of ice in a bumbag and a further 66 grams of that substance up in your apartment. There was ecstasy, ketamine, benzodiazepine and a decent quantity of the 1,4-Butanediol. Also a variety of weapons including a taser. There were various sums of cash. The largest portion of that was located inside a locked and screwed shut cupboard next to the pantry. In that location there was $439,800 of cash in Australian 100-dollar notes. There was also $925 in US currency which relates to one of the summary offences. All up there was $451,990 cash in Australian dollars. Now, that sum which is the sum particularised in Charge 6 does not include around $34,000 relating to what is described as a $5-note collection or your collection of coins. That sum existed as a matter of fact but is not rolled into Charge 6.
9 You were interviewed back at the Dandenong police station and you made a detailed set of admissions. You told the police you had been selling drugs for over a year and that most of that money was sourced from the sale of drugs. So much then for my short summary of the summary. That is all it is. As I say, I will sentence pursuant to the more detailed agreed statement which is marked as Exhibit A on the plea. You have been in custody since your arrest and pleaded guilty at what I will treat as the earliest opportunity.
In Mitigation
10 Your counsel Mr Cameron conducted the excellent plea on your behalf and relied upon a detailed written outline dated 27 October. He really could not have said more on your behalf.
11 He placed before me details of your personal and family background including your educational and employment history. He made some submissions as to the relative gravity of the offending and the relevant sentencing principles in play here. He submitted that you had been making the best use of your time in custody and that you had positive prospects of rehabilitation.
12 He placed before me a report from Ms Carla Lechner, some clean drug screens, references from your mother and sister and one from a work supervisor as well as a drug course certificate of completion. I have read all of this material again since the plea and I take it into account though I will not necessarily descend to the detail of the character references or, for that matter, the report of Ms Lechner.
13 Mr Cameron relied upon the following matters in mitigation:
· Your co-operation with police;
· Your early guilty plea in the midst of the global pandemic;
· The presence of remorse;
· The absence of criminal history; and
· The impacts of COVID-19 upon your custodial experience.
14 Now, commercial quantity trafficking is what is described in the Sentencing Act 1991 as a Category 2 offence. Unless one of the exceptions set out in s5(2H) of that Act applies, prison is required as a matter of law. Whilst there is no burden on an accused to establish any of those exceptions (Fariah[1]) your counsel accepted that none of those exceptions applied here. That is plainly the position and I will not refer to those provisions again.
[1]Fariah v The Queen [2021] VSCA 213
15 The fact is, Mr Cameron was correctly conceding the inevitability of a significant prison sentence with a non-parole period.
Prosecution
16 Ms Zammit, on behalf of the Director of Public Prosecutions of this State had prepared some written submissions and they were marked as part of Exhibit A. I see no need to descend to the detail of those matters. They went to many of the same areas as had been raised by your own counsel. So submissions about matters of seriousness and the relevant purposes of sentencing but also sensible concessions as to the existence of some of the matters in mitigation in this case. These written submissions were generally pretty uncontroversial. One issue taken by your counsel was to the description of the level of seriousness of Charge 1 though he in fact retreated to some degree on that point in his oral submissions made to me. He did however challenge the suggestion that had been pressed by the prosecutor that there should be some moderation or reduction of what are described as the Worboyes[2] factors owing to the fact that these crimes were actually committed amidst the global pandemic. I will make my own judgment as to the seriousness of the offences but I say now, I do not accept the prosecution submission dealing with the Worboyes reduction point. I will say more about that later.
[2]Worboyes v The Queen [2021] VSCA 169
17 The prosecution was calling for a prison term here with a non-parole period but so much had already been readily conceded by your own counsel.
Background
18 I am not going to descend into the fine detail of your background for a few reasons actually. Firstly, I have no reason to doubt the details of your personal and family background. Those details have been placed before me in the written submissions as well as in Ms Lechner’s report. I accept that background. Secondly, I am really not satisfied on balance that your background has much if anything to do with the crimes that I am dealing with. There is no suggestion of any reduced culpability, either arising from the circumstances of your background or from any other factor or condition prevailing at the time of the offending. It is almost impossible to know what originally led you into trafficking in drugs. I say originally, for though I am dealing with a charge limited by the between dates period (Charge 1) or occurring on the date of arrest (Charge 2), both the agreed summary and your counsel’s written and oral submissions made no secret about a far larger period of criminal conduct. See for instance paragraph [18] and also [41](d)(ii) of Mr Cameron’s submissions or paragraph [2] of the agreed summary. You admitted far lengthier trafficking in the police interview. I will say more about this later in these reasons.
19 Back then to your background. Well, yours was a pretty stable and secure background, actually. You are the youngest of three children born to your parents who are still together. You were born on 30 August 1983 and were 37 at the time of the offending and 38 now. You have a close relationship with your mother and older sister and they have written impressive references. Your father is still alive but he has been battling very serious health issues for over a decade. Parkinson’s disease and then a more recently diagnosed condition. Sadly, he is in a state of real decline. You are not in contact with your brother. I do not quite know why.
20 You attended a number of schools. It would seem you were bullied at school to some extent and you truanted and then left altogether at the start of Year 11. You have had, until about seven or eight years ago, a very solid work history. You completed a plumbing apprenticeship. You worked in that capacity until you were about 30. There is a very strong work reference from Mr Mair; he was one of your supervisors. Once you were 'let go' from that job, you lost your sense of purpose and started working as a delivery driver and then as a driver of escorts. Your self-esteem had taken a bit of a hit when you lost your employment.
21 You have no dependents. You have never married and your last meaningful intimate relationship was one you had formed in your 20’s lasting for some five years. You had formed a relationship with Ms Peri Nelson prior to being remanded and that will no doubt be tested by the dimensions of the sentence that I will soon impose upon you.
22 Drugs have been a major problem for very many years, with daily use of speed or ‘ice’ for that matter in your 20’s. I was told by Counsel that ‘ice’ has been a major problem for close to two decades. You were still able to function and to work.
23 Whilst in custody you have maintained close contact with your family and they are very supportive of you and plainly will be so upon your ultimate release.
24 It is your first time in custody, for you have no prior criminal history at all. It has not been an easy time to be in custody, coinciding as it has with a number of restrictions arising as a result of the COVID-19 pandemic. You have been held mainly at Fulham and you have settled in very well.
25 Since being in custody you have remained drug free. There are a couple of clean urine screens and at least one other test the results of which you are unable to access. But I will act on the submission that you have been drug free. You have worked full time in custody. You have also done a number of courses and programs. I accept then that you have made good use of your time in custody (see paragraphs [34](a)(i)-(e) of the submissions).
26 I turn then to consider the other matters raised by Mr Cameron.
Guilty plea
27 The first of those matters is your early guilty plea. It was entered at what I will treat as the earliest stage and as a result there have been considerable savings. By pleading guilty you have taken early responsibility for your offending, and of course that acceptance was conveyed earlier still in the interview with the police.
28 As a result, the time, cost and effort of a committal hearing or a trial up in this court has been avoided. Witnesses have not been required to give evidence. These are all matters of significance.
29 You have facilitated the course of justice. Your guilty plea is also worthy of extra weight for the many reasons set out in the decision of Worboyes[3]. There is a mountainous backlog of cases waiting for a hearing in this Court. This case is not one of them. I mentioned earlier at the start of these reasons that I do not accept the submission of the prosecutor that there should be some reduction in the weight given to the Worboyes factors owing to the fact that the crimes took place amidst the global pandemic. So I do not act on those submissions set out at paragraph [8]-[11]; I reject them.
[3]Worboyes v The Queen [2021] VSCA 169
30 I have mentioned your co-operative stance with the police and the detailed admissions that you made including those at Questions 524-534.
31 Your level of cooperation is also a matter in your favour.
32 I take these various matters into account in mitigation.
Remorse
33 Your counsel argues that you are remorseful. Given your early guilty plea, the interview with the police and the reference to the presence of remorse in the character references and the tenor of the report of Ms Lechner, I am prepared to find that there is some actual remorse in this case. I believe it is mixed in with a decent enough dose of shame for the position that you have placed your family in. That is not a bad thing at all actually. Your counsel was not suggesting you had a fully developed insight. Rather, that it was still developing and that you are certainly in a far better state than you once were in. I certainly do not see any hint at all that you are in any way revelling in this offending. Quite the opposite actually when I examine your mother’s and sister’s references in particular. So I do take the existence of remorse into account in your favour.
Rehabilitation
34 I turn then to your prospects of rehabilitation. I have already said you are doing well in custody. You have had the ability to reflect on your criminality. You have a stable family background and obvious support available upon your ultimate release. You have had a good employment history until you lost your way. You have pleaded guilty at the earliest stage and you have some remorse. You have the complete absence of any criminal history and you do not have any intractable mental health issues which might impede your rehabilitation.
35 You call in aid your past good behaviour and I do not ignore the absence of any prior criminal history. Of course I do not. However as I said on the plea you have jumped in very much down at the deep end of offending here. No-one who knows you would ever have expected you to engage any serious criminal conduct at all and yet of course you did and for a sizeable enough period of time. This was not conduct committed out of any financial need. There was no financial need at all. Of the over $480,000 cash found in that apartment, as I have said, around $34,000 related to your $5-note and your coin collection. Well, there is the other $451,000 the subject of Charge 6. You were living in a rented Docklands apartment paying $500 or $600 a week and renting a car. You had no job. You had no lawful income. You were not receiving any government benefits.
36 You have a high level of experience and proficiency in a trade. You could have presumably worked in a legitimate trade. You chose not to. This was not spontaneous offending. It is not in any meaningful way connected up to your own drug use. I have no doubt that you used some of the proceeds to buy your own drugs and to live, but it has none of the hallmarks of trafficking to support an addiction. There is no reduction in culpability at all in this case. In fact, your culpability is high. You were not a youthful person more prone to making missteps. You were 37 years of age, a mature man, committing what you knew were serious offences indeed and I am satisfied of that beyond reasonable doubt. True it is you have no prior convictions but as is clear, this conduct was hardly out of character in this sense. It is conceded that you had been doing it for much longer than the charged dates.
37 You are in custody and of course that represents a large fall from grace for you. No doubt the fact of apprehension, police interview, being charged and being brought before the court and being on remand to this point will serve to deter you to a degree. So too of course the sentence which I shall soon impose which will extend your custodial liability. Your family are also on notice and that, I am sure, may also be a protective factor. They are very impressive references from your mother and from your sister. They believe you are genuine in seeking to move on to a very different and better phase of your life. In fact they had both noticed your disengagement or withdrawal from the family in the 18 months leading into your arrest and it really all makes perfect sense to them now. They put it down to the shame that you had for the offending that you were committing. As I say, having a sense of shame about either what you have done or even shame for letting your family down, well, that is no bad thing at all.
38 Your counsel was arguing that you have, as he termed it, very good prospects of rehabilitation. I do not judge them to be quite that high. As I say, you have had family support. You have had a good work history and no doubt you had the capacity to be legitimately employed at the time rather than running what was essentially a business as a drug trafficker. That is what it was. It was not some sideline. You have gone into this pernicious trade. It is plain that it was for a period far longer than embraced by the between dates of Charge 1. Make no mistake, I will sentence you for that between-dates crime, but your retreat from your normal existence is not nearly as brief as those two dates would suggest. It was not some transitory aberration. In fact, your conduct was in character for a large enough period and that is so despite the absence of prior convictions. I do accept though that viewed against the totality of your adult life, it was out of character.
39 You were a mature man committing what you knew to be unmistakably serious crimes. As I have said, there was nothing particularly significant in your personal circumstances at the time of this offending in any way truly explaining this decision. The fact is you bowed to temptation. Will you bow to it again in the future? Your family are persuaded that you will not and I hope they are right. The fact is though, you have had long term issues with drugs and the jury is out as to how that will all play out upon your ultimate release.
40 I have not really mentioned Ms Lechner’s report in any detail and nor will I. It is not relied upon as in any way enlivening any of the principles from the case of Verdins[4]. It is relied upon as containing detail of your history and your make up and perhaps the possible pathway into this conduct. A report speaking of the existence of some implied remorse and some developing or developed insight and as bearing upon your prospects of rehabilitation. It is probably always nigh on impossible to look back at a life and calculate why it turned out in the way that it did. It is probably always speculative to a degree to try to understand why a person started to use drugs or continued to use them. Now I accept that there may well have been a constellation of features leading into your decision to commence trafficking in drugs whenever that was. There probably always are. Here, loss of job, loss of sense of purpose, lowered mood, reduced self-esteem, maybe even some increased drug use and some consideration of the funding of your own use of drugs. Perhaps even obtaining acceptance and the social kudos and the social interaction that your counsel spoke of at paragraph [18] of his submissions.
[4]R v Verdins [2007] VSCA 102; 16 VR 240
41 However I am dealing with the crimes on this indictment. The loss of your job and the blow represented by that was many, many years ago now and the conduct I am dealing with last year, well, it was driven by the lure of financial reward. That is very obvious to me. I am satisfied of that beyond reasonable doubt.
42 However, having considered all of the materials, I am prepared to find that you have good prospects of rehabilitation. You will need to abstain from illegal drug use in the future. That is pretty obvious. My only reason for not accepting that you have very good prospects is the seriousness of this calculated offending and the natural question mark or reservation posed by what is after all a two-decade long misuse of methylamphetamine and the failure to ever have obtained any treatment. But I do accept that your mother has reason to be confident you will move forward into a better phase of your life upon your ultimate release. So I do view your prospects favourably.
COVID-19
43
I accept the submissions made by your counsel as to the impact of
COVID-19 restrictions on your custodial experience (see
paragraphs [62]-[64]). I will not repeat them all in the circumstances. As I say, I accept them.
44 It is clear that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has undoubtedly been a more stressful environment in the time that you have been there to this point and that is for a period now well exceeding 375 days. Social distancing has not been easy. No doubt there has been worry about catching the virus in such a setting where, unlike someone in the community, there is just no level of autonomy. There have been some lockdowns and you have also experienced the increased burden of quarantine.
45 You have had some limitations to visiting and no doubt to the full range of courses in the period in which you have been held. The prohibition upon visiting has not spanned your entire period on remand but I accept that you have had no visitors at all. No doubt your mother has had real limitations posed by your father’s sad health predicament. Further, of course, you have been up at Fulham so visiting is no easy matter at all for anyone.
46 It has not been a good time to be locked up and it is your first taste of prison. That in the setting of knowing your father is in a state of decline, so none of this can be easy for you.
47 What lies ahead in the future is really impossible for me to determine, at least in relation to the pandemic and restrictions. I am not free to speculate. I cannot just guess. I cannot speculate for instance about how long restrictions on prisoner visits will persist. We are starting to open up in the community, and that is owing to the increased vaccination rate. Prisons seem to have lagged a bit behind the community in terms of restrictions being lifted. Presumably though the restrictions in a prison setting will lift in due course. I cannot say exactly when that will happen. Those whose job it is to actually run the prisons will be able to reflect on the impact of any ongoing limitations in an individual case. They will have the power to address any increased burden in your case by way of conferring emergency management days. I cannot know if that will take place or not.
48 I do take into account though that it seems likely that these current restrictions will continue into the future at least in the short term. I am sure that will produce some worry and uncertainty. I take into account the increased burden posed by the response to COVID-19 in the ways contemplated by your counsel.
The Offences
49I must pay regard to the nature and gravity of the offences before the court. It is accepted by your counsel that this was serious offending. Your counsel made some submissions about matters of aggravation absent here. Well, the absence of some matters of aggravation does not reduce the seriousness of the matter before the court. I have to sentence you for the crimes that you have actually committed, not the crimes that might have been committed in a different fashion. You were in business as a trafficker in drugs. That is very clear and I am satisfied of that beyond reasonable doubt as I am satisfied beyond reasonable doubt that there was absolutely no financial need.
50You have taken a calculated risk and done so out of greed. This was your own business. It is true then that there is no developed hierarchy. You were the person making all of the decisions and the person gaining all of the benefits. They were obviously sizeable enough. The offending that I am dealing with has next to nothing to do with your drug use. Perhaps it might have been different when you started out whenever that was. I really cannot know. But in the time frame that I am dealing with, you had a very significant amount of cash from which you could fund your own use including the $30,000 plus in your $5-note collection. On the day of your arrest, you had the $451,0000 the subject of Charge 6 and at most only $30,000 of that could connect up to the covert buys the subject of Charge 1. You have obviously become warped by the lure of easy financial gain. I am satisfied of that beyond reasonable doubt. Your moral culpability is high in this case. There was a sizeable enough quantity of the 1,4-Butanediol. There were the weapons, at least some of which were possessed as a result of your decision to traffick and the desire for some security. The knowingly deal with proceeds of crime offence relates to a large sum of money indeed.
51Now there was discussion on the plea about the dangers of this Court somehow inadvertently dealing with you on Charge 1 as though you were a commercial quantity trafficker over a 12-month period. Well, I will not do that. The dates and the conduct the subject of Charge 1 are clearly spelt out in the indictment and in the agreed summary. I am sentencing you on the commercial quantity trafficking for that limited between-dates period and only for that identified conduct. But, of course, there is a broader context here. Your counsel cannot and does not suggest that your criminality was so limited. The large sum of money and your admission to a far larger period of trafficking cannot be ignored when I come to consider the need to deter you and the judgements that I must make as to your motivations for offending and your prospects of rehabilitation. Charge 6 relates to cash being the proceeds of crime and your knowledge of that fact and the proceeds were as you admit, from you uncharged trafficking. I will not deal with you for that trafficking or roll it into Charge 1. I will deal with you for the possession of those proceeds. I am keenly aware of the need to sentence you for the particular crimes on the indictment and not to somehow impermissibly extend the dates of Charge 1.
Purposes
52I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose and I do not ignore it. I have already pronounced my views as to those positive prospects. But this is not all about you. Rehabilitation is not the only thing I must consider. There are many other sentencing purposes and given the seriousness of your offending, some of these must be given real weight here.
53I am required to punish you justly and proportionately. Well, punishment is an important sentencing purpose in this sort of case.
54I must also denounce your conduct. Again, that is important.
55Community protection is also of importance and that is so despite the absence of any criminal history.
56Deterrence is also important in this case. There is the need for this Court to seek to deter you as well as others from offending in this way in the future.
57Specific deterrence relates to the need to deter you. Though not unimportant given the seriousness of the offending, it would plainly be given more weight if you were a repeat offender, someone with relevant history before the Courts, perhaps even someone who had thumbed his nose at past Court orders. Well, that is not the position here at all, so there can be some moderation of specific deterrence. The same rationale I believe must lead to some moderation of the weight given to community protection. I am not saying specific deterrence or community protection are to be ignored. They cannot be. They still must be given appropriate weight but there can be some moderation for the reasons I have specified. Self-evidently if you had less favourable prospects of rehabilitation and a higher risk of reoffence, well, the weight would have increased for each but that is not the position.
58General deterrence is however a very important purpose of sentencing in this sort of case. That is the need to deter others.
59Illegal drugs have had devastating impacts on many in our community. They cause untold misery to the many who use them and to the families of those who use them. They really destroy lives. Those who make the decision to traffick in drugs at the level that you did and for the reasons that you did really cannot expect much by way of leniency.
60People such as you who traffick in drugs at the level you did are virtually always taking a calculated risk. They hope that the potential rewards will justify taking that risk. Of course they hope not to be caught. Well, those rewards are vast as we can see in this case. The amount of money in Charge 6 gives us a very decent window into the rewards on offer.
61The Courts must pass sentences which might cause those considering this sort of crime in the future to reflect on the sizable risk of stern penalties waiting in the wings, if caught. We as Judges must try to neutralise the lure of the easy financial gain by placing into the mind of potential likeminded future offenders the stark reality of the risk that is being assumed. Penalties really can be life-altering in this area and people must understand that fact and hopefully rethink their conduct, as of course you should have.
62I must pay regard to the maximum penalty for each offence. The 25-year maximum prison term for the commercial quantity trafficking charge should give you some sense of how Parliament views this style of offence.
63I pay regard to current sentencing practices. That is not a single controlling factor at all.
64I have ooked at the Sentencing Advisory Council Snapshot No. 244 of 2020 dealing with the commercial quantity offence. Also the snapshot for simpliciter or non-commercial trafficking (No. 243 of 2020). I have looked also at the online data for the proceeds of crime offence (there is no Snapshot for that crime).
65I have looked at the relevant portions of the Judicial College of Victoria Sentencing Manual (see JCV Sentencing Manual – Case Summaries at 7.3 and 4). I looked also at the various cases referred to by the prosecutor. None of those was on all fours. I note for instance that Parks[5] ran a trial and had relevant prior criminal history.
[5]Parks v The Queen [2017] VSCA] 151
66Your counsel mentioned the case of Gregory[6] and so too for that matter did the prosecutor. Now, neither were doing so to suggest that your offending fell at the level described in that case. It plainly does not. Rather they were taking me to matters of principle set out in that case.
[6]Gregory (a pseudonym) v The Queen [2017] VSCA 151
67In fact the Court of Appeal concluded in the case of Gregory that the current sentencing practices for what they described as serious examples of commercial quantity trafficking were totally inadequate. For that reason, the Judicial College of Victoria Sentencing Manual suggests that there is a need for caution in looking at any sentences passed for this crime prior to that decision being delivered.
68The Court of Appeal in Gregoryidentified features which might lead to the expectation of sentences advancing well into double figures (see paragraph [98]). One factor was if the quantity was close to the large commercial quantity. Another, was a finding that a person had a senior role, or a role in charge, or if there was a lengthy duration of offending, or if a person had relevant prior convictions or was convicted following a trial. Now, there were a variety of matters which the Court of Appeal in that case said would lead to far greater sentences being imposed in the future in serious examples of this crime.
69It is clear, as I say, that they were focussing on what were described as ‘upper category offences’.
70There have been enough decisions out of that same Court questioning the worth or value of breaking down offences into categories and subcategories. What is far more important is to actually examine the conduct engaged in.
71The eight-and-a-half-year term imposed upon Gregory for commercial quantity trafficking was not disturbed. The Court of Appeal went on to say that had they not been constrained as they then inaccurately 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. Now, these were very high numbers indeed and they clearly signalled a very different range of sentences into the future for some commercial quantity traffickers. Some but obviously not all. Now, that case of Gregory has been affirmed in cases since for instance DPP v Fatho and Huynh[7], Sharbell[8] and also the case of Condo[9].
[7] [2019] VSCA 311 (“Fatho”)
[8]Sharbell v The Queen [2018] VSCA 324
[9]DPP v Condo [2019] VSCA 181
72Sentencing statistics do not inform my task in the sense that they do not provide the appropriate sentence in this case. They are of very limited, if any, use. Nor do other sentences imposed upon other offenders for other crimes operate in some manner as though precedents to be followed unless distinguishable. They are not precedents. They are sentences and in fact, there is no such thing as one correct sentence. A different judge might have permissibly passed a different sentence, either higher or lower.
73As I said earlier, no one was suggesting that you are on all fours with Gregory. You plainly are not. His crime was far more serious. Yours though is serious enough.
74I am exercising a sentencing discretion. I am doing it in your case, not his. I am sentencing you for your crimes and that is not a mathematical task or one where the outcome is dictated by what has happened in other cases whether that case, or Parks to which I was referred.
75This is a quantitative not a qualitative regime. I am not to concern myself with the relative harmfulness of given drugs. That is not my task. The relevant legislation, the Drugs, Poisons and Controlled Substances Act, sets out various thresholds in terms of quantities.
76There are some cases that spell out that certain drugs have a much lower monetary value and so in that sort of case, whether dealing with an importation or an instance of trafficking, there have developed much lower sentencing practices for crimes involving those drugs. Not owing to any consideration at all as to the harmfulness of the drug but rather as recognising the enormous reward differentials and the way in which sentencing purposes will be weighted as a result. That is the position for the drug 1,4-Butanediol. It is a far less valuable drug. The reward differentials are far less significant. See the case of Fatho and see also the case of Maxwell[10]. Well, that is certainly not the position with methylamphetamine which is a highly valuable drug with very high reward differentials.
[10]DPP (Cth) v Maxwell [2013] VSCA 50
77In the case of Haddara[11] the Court of Appeal also spoke of the prevalence of the offence of trafficking in methylamphetamine and the need to elevate general deterrence in such cases.
[11]Haddara v The Queen [2016] VSCA 168
78I have to make a judgement as to the gravity of your offending and I have spoken of that already. We had some discussion in the course of the plea and your own counsel submitted that using an adjective to describe offending was not a matter of great utility. He was not suggesting in any way that the commercial quantity trafficking was low level offending. That was not his submission at all. The Crown said it fell at mid-level.
79Now, here, as I have said, the weight of the particular drug is a matter of significance. It is a quantitative regime and the weight is a fixed matter. Only one of those drugs of course exceeds the commercial quantity. That is why you are charged with that offence, Charge 1.
80The quantity of drug is undoubtedly an important consideration but it is by no means the only or even the most important matter. This was not a case where you had many multiples of the commercial quantity of the methylamphetamine by mixed weight. You were not far over the commercial quantity at least by the mixed weight. You were though more than three times over the relevant measure by pure weight. As to Charge 2, you had a decent enough quantity of the 1,4-Butanediol; over half the commercial quantity. You had the other various drugs but only possessed them and in quantities such as I treat them as falling in the lower penalty level.
81I have the between dates nature of Charge 1 involving the sales to the covert operative and possession for sale of that drug (methyl amphetamine) on the day of arrest and the other drug (1,4-Butanediol) as at the date of arrest.
82It was your business and yours alone; it is clear enough you were connecting up with other players. That is how you were caught up in the investigation that was targeting Graue. The covert sales had already netted $30,000; I am not suggesting that is all profit. You, within a short space of time, had moved to supply an additional 112 grams for $38,000. So, we are dealing with $68,000 of sales in these identified transactions in a handful of weeks. You were speaking of the next shipment coming in though it is not suggested that you were involved in those. But you obviously had these connections to other players. There were a couple of weapons you had for security being the taser and at least the credit card knives. Your offending stopped only when you were caught. Of course, that was a matter of pure chance. I do not accept the account of your motivation and the reasons for descent into this crime as being in any way mitigatory. You lost your job many years ago. You had skills you could use legitimately. You have chosen not to use them. The loss of that job really is ancient history occurring in your early 30s. You were 37 as you offended last year.
83You knew what you were doing. Perhaps you did rationalise it but you knew the risks. You were a mature man. You were acting out of greed. There is not a hint of any financial need in this case. There is no reduced culpability as there sometimes is, for instance, with someone with a sizeable mental health issue or an intellectual disability or even someone with youth on their side.
84You were though, a man with no prior history at all before the Courts and one who has pleaded guilty at the earliest stage and is remorseful. One who in my judgment has favourable prospects of rehabilitation into the future.
85You are not in that same class as Gregory and that is actually just as well for you for, as I have said, the Court of Appeal was suggesting there would be nothing unusual with that style of offence receiving 13 to 15 years on a guilty plea.
86Your offending was still serious. Charge 1 is not a low-level offence at all, though it is far removed from the worst cases. Charge 2 relates to a decent enough amount of 1,4-Butanediol possessed for sale.
87Charge 6 involves a large sum of money. It clearly represents a serious example of knowingly dealing in the proceeds of crime. That sum cannot be in any sizeable way connected to any of the trafficking charges I am dealing with. That is because the trafficking of the 1,4-Butanediol relates to possession for future sale. Charge 1 relates to the covert buys and the possession for sale of the methylamphetamine at arrest date and as to the completed buys, we know they only netted $30,000. I do not regard it as a matter of any mitigation that it was money found in your possession on a single day. So what? That is not mitigatory. This sort of charge will very often be connected to something found upon arrest. Either property or cash. I do accept it is not an offence with any level of sophistication. It is not the subject of any laundering or sophisticated arrangements to legitimise it or to convert it into assets. You trafficked drugs. You made a lot of money. I am not dealing with you for that trafficking. You saved the proceeds of your crime and this was the amount as at the date of your arrest: $451,990.
88I take into account all of the submissions made by your counsel and those made by the prosecution.
89Prison is always a disposition of last resort. Your counsel conceded the inevitability of a significant prison sentence. That was a sensible concession.
90He submitted I should fix what he described as a low non-parole period in part, in recognition of your rehabilitative prospects. I do not ignore those prospects and they will be reflected both in the individual sentences, the head sentence and the non-parole period but, as I have said, rehabilitation is but one of many purposes of sentencing here. General deterrence is a matter of real weight in my task and so too is punishment.
91I am not able to take into account the possibility of your early release on parole. I am though required by law in this case to fix a non-parole period and that is owing to the size of the head sentence that I will still pronounce. The Adult Parole Board will make the decision as to whether you can be released. That has nothing to do with me.
Totality
92I take into account the principle of totality of sentence.
93I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your overall criminality was high. The most serious offence is the commercial quantity trafficking charge. The other trafficking is serious enough but relates to your possession for sale on the day of the arrest. So there is a temporal connection to the most serious charge, being Charge 1, which ends on that same date. It relates to a different drug but it connects up to what you were then doing. You were trafficking in drugs. There should be, in my view, sizable concurrency between those two sentences. The knowingly dealing in proceeds of crime is in my view a serious example of that offence and, as I have said, it is mostly unconnected to the charged act of trafficking that I am dealing with. There is virtually no aspect of double punishment there. There must be, in my view, sizeable cumulation in relation to that sentence.
94I 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 prison term is called for here. It is simply inevitable and that is owing to the seriousness of your offending. That is conceded.
Disposal & Forfeiture Orders
95Ms Zammit, there is a disposal order in relation to the drugs sought. There is also a forfeiture order in relation to cash seized being $451,990, the subject of Charge 6 and together with the weapons and the US currency. That is the extent of those orders?
96MS ZAMMIT: That is correct, Your Honour.
97HIS HONOUR: And there is consent to the making of those orders, Mr Cameron, is there not?
98MR CAMERON: That is correct, Your Honour.
99HIS HONOUR: All right. Well, look, I am not going to pronounce those in any detail at all. I accept that the criteria for the making of both the disposal order in relation to the drugs located and the forfeiture order in relation to the cash seized, being the proceeds of the section of the Charge 6 offence, the summary offence relating to the US currency and the weapons, that the criteria, is made out. I will have my electronic signature attached to each of those orders and I will not further pronounce them. Those orders will be made and those items will be handled in the manner contemplated by those signed orders.
Sentence
100Well, I am sorry to have taken so long to get to this point, Mr Moore. So let me now then move to pass sentences upon you.
101On Charge 1, which is the charge of trafficking in a commercial quantity of methylamphetamine, I convict and sentence you to 5 years' imprisonment. That will be the base sentence.
102On Charge 2, which is the charge of trafficking in 1,4-Butanediol, I convict and sentence you to 16 months' imprisonment.
103On Charge 3, 4 and 5, they are the three charges relating to the possession of drugs, I believe in fact that it is open and appropriate to impose an aggregate sentence in relation to those three charges. On those three charges, you will be convicted and sentenced to an aggregate period of 7 days' imprisonment.
104On Charge 6, which is the charge of knowingly dealing with the proceeds of crime being the $451,990 in cash, you are convicted and sentenced to 3 ½ years' imprisonment.
Summary matters
105If I have not already done so, I believe I have, but I will mark as withdrawn the summary matters that are not proceeding, so Charges 15, 22, 25, 28 and 30.
106On the rolled-up and amended Charge 14 which relates to the various prohibited weapons, you are convicted and sentenced to 2 months' imprisonment.
107On the charge of possession of the poison, the Viagra, Charge 23, you are convicted and fined $300.
108On the charge of dealing with the property suspected of being the proceeds of crime, (Charge 27) this being the US currency, you are convicted and sentenced to 7 days' imprisonment.
109Finally on the charge relating to the fireworks, that is described as the explosive substance (Charge 29), you are convicted and fined $200.
110So the base sentence is therefore the 5 years that I have imposed on Charge 1.
Cumulation
111I make the following orders for cumulation of sentence. I direct that;
·3 months of the sentence imposed on Charge 2; and
·15 months of the sentence imposed on Charge 6;
is to be served cumulatively upon the base sentence and upon each other.
112I have decided to run the rest of the sentences concurrently with the base sentence and upon each other in further recognition of the principle of totality.
Total effective sentence
113These orders then produce a total effective sentence of 6 ½ years' imprisonment
Non-parole period
114I fix a period of 3 years and 10 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
115You have already served 382 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
116I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have sentenced you to 8 ½ years' imprisonment. I would have fixed a non-parole period of 5 years and 10 months and that declaration is to be entered into the records of the court.
117Let me just see if there are any other matters. Ms Zammit, any other matters from your perspective?
118MS ZAMMIT: No, Your Honour.
119HIS HONOUR: From yours, Mr Cameron?
120MR CAMERON: No, Your Honour.
121HIS HONOUR: All right. Now, you will presumably have to arrange a conference then to discuss what has occurred here today and his rights in relation to this sentence. Will you do that in the next handful of days?
122MR MOORE: Your Honour, if I could indicate that to Your Honour and to Mr Moore, I arranged that last week and that will occur at 4.30 this afternoon.
123HIS HONOUR: Great. All right. Well, he has heard that then so, Mr Moore, that completes the matter then. Mr Cameron will be communicating with you later today to discuss your rights in relation to this sentence, all right? So they are all the matters that I need to deal with. So there is nothing else from either of you then, Ms Zammit or Mr Cameron?
124COUNSEL: No, Your Honour.
125HIS HONOUR: Well, I think in those circumstances then what I will do is I think I will remain online with my staff and I will have the rest of you exited from the hearing, all right?
126COUNSEL: If Your Honour pleases.
127HIS HONOUR: Adjourn the court then to 9.30 on Wednesday and I will remain online please.
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