Director of Public Prosecutions v Nguyen
[2024] VCC 279
•7 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02416
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAM NGUYEN |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2024 | |
DATE OF SENTENCE: | 7 March 2024 | |
CASE MAY BE CITED AS: | DPP v NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 279 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking commercial quantity of a drug of dependence – Possession of a drug of dependence – Possession of prohibited weapon without exception – 1,4-Butanediol – Poly-drug addiction – Acquired brain injury
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Control of Weapons Act 1990 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Obian v The Queen [2023] VSCA 18; Gregory v The Queen [2017] VSCA 151; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; Gayed v The Queen [2021] VSCA 141; Al-Dimachki v The Queen [2021] VSCA 98; Arici v The Queen [2019] VSCA 228; DPP v Fatho [2019] VSCA 311; Ellis v The Queen [2018] VSCA 221;
Sentence: 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 6 months – s 6AAA declaration – 5 years’ imprisonment with a non-parole period of 3 years and 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Mr P. Chadwick KC & Mr M. Kowalski | Balot Reilly Criminal Lawyers |
HIS HONOUR:
1Nam Nguyen, you have pleaded guilty to the following offences:
(a) One charge of attempted trafficking in a commercial quantity of a drug of dependence,[1] which carries a maximum penalty of 25 years’ imprisonment;
(b) One charge of trafficking in a commercial quantity of a drug of dependence,[2] which carries a maximum penalty of 25 years’ imprisonment;
(c) Three charges of possession of a drug of dependence,[3] each of which carry a maximum penalty of five years’ imprisonment; and
(d) One related summary charge of possession of a prohibited weapon without exemption,[4] which carries a maximum penalty of 240 penalty units or two years’ imprisonment.
[1] Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[2] Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[3] Contrary to s 73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[4] Contrary to s 5AA of the Control of Weapons Act 1990 (Vic).
2You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 17 April 2023, which I note is an agreed document.[5]
[5] Exhibit P1.
The Offending
3At approximately 10:45am on 9 August 2022, Australian Border Force (ABF) Officer Shannon Abbott examined a consignment being delivered by Australia Post. The consignment, which weighed approximately 11.350 kg, was selected for targeted screening and affixed to the consignment was a label containing the following information:
(a) The recipient was a ‘Nam NGUYEN’ with mobile number 0456 981 259.
(b) The parcel was to be delivered to Parcel Locker 1008250975, 9-15 Williamson Road, Maidstone 3012.
(c) The consignment number attached to the parcel was 34HWK5005944.
(d) The House Air Waybill (HAWB) number was ACWL22070100237 – (HAWB signifies a confirmation that the forwarder is to deliver the shipper’s goods to an agreed name and place).
4The consignment was subjected to clearing procedures and ABF Officer Abbott examined the consignment by X-raying its contents and opening it. ABF Officer Abbott located 20 bottles labelled as “Rose Hydrosol” which contained a clear liquid substance. ABF Officer Abbott opened several bottles which contained what appeared to be the same clear liquid. ABF Officer Abbott extracted a sample of the clear liquid from one of the bottles and preliminary testing revealed the bottle contained 1,4-Butanediol.
5ABF notified Victoria Police and maintained possession of the consignment until it was handed to Victoria Police on 29 August 2022.
6Victoria Police subsequently commenced an investigation. The number affixed to the consignment was revealed to be yours.
7On 30 August 2022, police executed a search warrant at a residence in Maribyrnong. Police gained entry by forcing the door open, as the occupants did not respond to knocks and requests by police to open the door.
8You attempted to flee out of the back of the residence on foot, but were observed by police, who yelled “Police, don’t move”, causing you to retreat into the backyard of the residence. You were arrested and escorted into the residence.
9During the search, the following were located:
(a) A black mobile phone;
(b) An Australia Post receipt;
(c) A MacBook charger;
(d) A JBL Wi-Fi modem;
(e) A black Google phone, located on your bed, underneath your pillow;
(f) A glass bottle containing clear liquid (drug analysis confirmed no drugs);
(g) A brown Asus laptop/tablet;
(h) A black Asus laptop/tablet;
(i) A black unbranded phone with a silver backing;
(j) A desktop computer;
(k) A CED device within a black sheath (Related Summary Charge 7 – Possession of a prohibited weapon without exemption);
(l) One green plastic bottle containing clear liquid, one other plastic bottle containing clear liquid, one blue bottle containing clear substance, and one box containing 26 bottles of clear liquid (all confirmed to be 1,4-Butanediol);
(m) A bottle containing clear liquid labelled Queen Strawberry Cream and a plastic bag containing white crystals (both confirmed to be methylamphetamine);
(n) A black case containing four ziplock bags with a white crystal substance and a ziplock bag containing a substance in foil (both confirmed to be Diacetylmorphine – “Heroin”); and
(o) A prescription medication bottle, containing Alprazolam pills.
10During a search of your vehicle, police located an Australia Post parcel box containing clear liquid, which was later confirmed to be 1,4-Butanediol.
11Following the execution of the search warrant, police identified that the bottles seized by ABF on 9 August 2022 matched the bottles seized from your residence, including empty matching bottles in a plastic bag in your bedroom.
Quantity of Drugs
12The drugs were subsequently analysed by Forensic Services Department of the Victoria Police on 16 September 2022 and the total net quantity found was as follows:
(a) The total amount of 1,4-Butanediol found by ABF on 9 August 2022 was estimated to be 9.99 kg (Charge 1 – Attempted trafficking in a commercial quantity of a drug of dependence);
(b) The total amount of 1,4-Butanediol found in your residence and vehicle was estimated to be 14.57 kg (Charge 2 – Trafficking in a commercial quantity of a drug of dependence); and
(c) The total amount of methylamphetamine, heroin, and alprazolam found were 0.7 grams, 0.6 grams and 0.5 grams respectively (Charges 3, 4 and 5 – Possession of a drug of dependence).
13The threshold for trafficking in a large commercial quantity (LCQ) of 1,4-Butanediol is 20 kg, and the threshold for trafficking a commercial quantity (CQ) of 1,4-Butanediol is 2.0kg.
14In relation to Charge 1, the quantity of drugs which you attempted to traffic represents five times the CQ threshold, or half the LCQ threshold.
15In relation to Charge 2, the quantity of drugs trafficked by you represents seven times the CQ threshold or two-thirds of the LCQ threshold.
Record of Interview
16You were conveyed to Werribee Police Station where you were interviewed.
17During the interview, you made the following admissions, amongst others:
(a) That your current mobile number was 0456 981 259 and that you had had that number for 4 or 5 years;
(b) That in your bedroom, which is the first room on the left hand side of the residence, police would find “you know, drug paraphernalia”;
(c) When asked what Police would find in your bedroom, you stated, “Okay so [sic] mentioned that there would be some heroin”; “There would be some ice”; “There would be some GHB”; “Yep. There’ll be empty bottles of GHB”; “There’ll be scales. There’ll be plungers. There’ll be needles”; and “There’ll be – what else would be [sic] – there’ll be a little pouch with maybe some baggies of ice and heroin in there’ll be maybe a bottle of testosterone, maybe it was”. You further stated the plungers and syringes are not illegal to have;
(d) That nobody else goes into your room;
(e) That police would find your mobile phone on “top of [your] laptop or on top of [your] bed underneath [your] pillow”;
(f) That police would find ice, some GHB in different bottles, empty bottles of GHB, empty “baggies” and maybe a bottle of testosterone;
(g) When asked about the box containing 26 bottles of 1,4-Butanediol located in a room in your residence, you said, “So that box was – that box came in – I don’t – I don’t know when. It came in long, long – it came in after – you know, I didn’t purchase anything --- yeah, after when I got my CCO – my – current one”; “I said –said to my case manager, that hey that’s it. I’m not gunna be purchasing anything else. I want to try and do my best. You know, and – and – and – and be – yeah and be clear and do – and do the CCO properly, yeah. Yeah”; “And then, all of a sudden, this – this box comes in. You know I didn’t purchase it. You know, I –I didn’t purchase it. It – it just came through. So I – I – I put it away and I – I just put it all away”;
(h) That you purchased the box before the CCO;
(i) When asked how you would purchase 1,4-Butanediol, you stated “Yeah, so in a nutshell, its exactly like a normal transaction --- in terms with buying something – sorry, for example, using a platform called maybe Signal or something”; “Yep. And one end is in Melbourne. The other end is in, let’s say, for example, China, and you get to speak to each other”; “She has product. He has money”; “There’s a transaction between cryptocurrency --- that’s been – that’s been held, and then one that’s gone through, all the check go through, the money that’s been sent to the supplier, then comes everything”;
(j) That you had been doing this for three months;
(k) When asked about having records on your phone for the order of the box containing 26 bottles, you stated, “No, no, it wouldn’t be. It would’ve been all deleted”; “No its set as a disappearing message”;
(l) That the box upstairs was purchased probably about June, or between June and May;
(m) That the items located inside your car belonged to you (being 1,4-Butanediol);
(n) You said, “So me being me, just I wasn’t cautious enough. I just sent the two blue bottles into a postal box and packaged it up and sent it to his parcel locker and be done with it. And that was it. You know, I know this was – yeah, I – you know after my CCO.” You admitted to doing this “two more times or something”;
(o) You were asked about an Australia Post receipt located by investigators during the course of the search warrant at your residence. The receipt contained details for a transaction made on 22 August 2022. The consignment weighed approximately 1.4 kg and was to be delivered to “Michael Clocherty” at a Parcel Locker in Perth, WA. When asked about the consignment you initially stated that it was a “package for a friend to send a Mother’s Day present”. You later stated, “Look it was – yes, it was a litre of juice”, and, “Yeah, so I – I do have someone in – in Perth that purchases 1,4-B for quite expensive cause drugs there are expensive…. a contact of mine in Perth wanted me to send stuff there”;
(p) When asked about the consignment seized by ABF on 9 August 2022, you stated, “maybe – there may have been a shipment that – that has – that was lost, yeah”; “Yeah, yeah, some shipment come and go, that’s on me”. You further stated that you couldn’t remember when you placed the order and that at times, you could not keep track of specific orders stating, “I don’t – I don’t know how much the quantity of order I purchase varies all the time”. You also said, “yeah, I ordered a shipment and it didn’t come through yeah yeah”; and
(q) The bottles seized by ABF were “purchased probably in July sometimes…Last month, yeah”. You said, “I was going to sell them to – to people in Melbourne and Perth”.
Further Investigation
18Subsequent analysis of your phone revealed the following evidence pertaining to ongoing drug related activity:
(a) Clear evidence of trafficking which is contained in photographs of messages on the phones seized. In one particular group chat, you used the name “poorha” and your associates were “Calvin Klein” and “MercuryQiu”, who police believe to be the suppliers of the 1,4-Butanediol. You and your associates discuss orders as large as 100 litres as well as the pricing;
(b) A MyPost account application, which had details of the parcel locations you had deliveries sent to. Delivery addresses included your residence in Maribyrnong;
(c) Photographs of drugs; and
(d) Notes which appear to be a ledger detailing drug transactions.
Objective Seriousness
191,4-Butanediol is also known as ‘1,4-BD’. In Obian v The Queen[6], McAuley JA explained that:
1,4-BD is a chemical solvent. It has a number of industrial uses. One is that, when diluted with water, it may be used as a domestic or commercial cleaning product. Aside from industrial uses, when flavoured (to disguise its unpleasant taste), it may also be ingested orally in which case the human body will naturally metabolise it to become gamma-hydroxybutyrate, more commonly known as GHB. GHB is colloquially known as ‘the party drug’ or ‘the date rape drug’. When consumed, it can induce euphoria or have a sedating effect[7]
[6] [2023] VSCA 18 (‘Obian’).
[7] Ibid, [115].
20The Court of Appeal in Obian accepted that ‘the potential harm of 1,4-BD to the community was also relevant to assessing the criminality involved’.[8] It noted that ‘[e]vidence before the sentencing judge showed 1,4-BD had become a dangerous substitute for GHB, effectively replacing GHB from as early as 2014, and posed a particular risk of lethal overdose due to the delay in 1,4-BD achieving its desired effect’.[9] While I don’t have that evidence before me, I take into account the effects of the drugs as described in Obian.
[8] Ibid, [380].
[9] Ibid.
21The maximum penalty of 25 years’ imprisonment indicates the seriousness of the trafficking and attempted trafficking charges.
22The sentencing regime for drug trafficking offences is quantity based, thus, quantity is a highly relevant consideration in sentencing for such offences.[10] Other important indicators of the seriousness of a given example of offending include the offender’s role in the trafficking, the duration of the offending, and the motivation for the offender’s involvement.[11]
[10] Gregory v The Queen [2017] VSCA 151, [23]-[24] (‘Gregory’).
[11] Ibid, [24].
23As discussed earlier in these reasons, the quantity of 1,4-Butanediol which makes up Charge 1 represents five times the CQ threshold or half the LCQ threshold, and Charge 2 represents seven times the CQ or two thirds of the LCQ threshold.
24The offending took place over a relatively short period of time, with just three weeks separating Charge 1 and Charge 2, and your counsel submits that your offending was unsophisticated which I generally accept. You ordered the narcotics using your own name and correct personal details, and stored the narcotics relating to Charge 2 in your bedroom at your parent’s house where they were easily discovered by law enforcement officers.
25Despite your admission that you were the sole offender in relation to these matters, there is no evidence of any lasting financial benefit derived from your offending. Though you have admitted that profit was a motive in your offending, your counsel submits that the offending must be understood as occurring in the context of a poly-drug addiction which has afflicted you for 20 of your 37 years and that you did not make your decision to offend on a purely commercial basis.
26It is a matter of aggravation that you were serving a Community Correction Order at the time of this offending. The Order was imposed by the Magistrates’ Court shortly before this offending took place.
27On balance I consider Charges 1 and 2 to be mid-level examples of attempted trafficking and trafficking, respectfully.
28Given the very small quantities involved, Charges 3, 4 and 5 are low-level instances of the offences of possession of a drug of dependence. The summary offence is also a low-level example as there is no evidence of your use of the taser.
Personal Circumstances
29You are 38 years of age and were 36 at the time of the offending. You have a limited criminal history. You were convicted of trafficking GHB in 2022 and sentenced to a CCO. You have also been sentenced for drug possession.
30Your parents were born in Vietnam and came to Australia as refugees, via Malaysia, prior to your birth.
31You were born in Melbourne and grew up in the south-west of the city. You had a stable family home in which you were one of three siblings. You have an identical twin brother, Cuong, who is now an IT specialist, and an older sister, Khoa, who is 45 years of age and an occupational therapist.
32You have a strong educational history having attended Queen of Peace Primary School in Altona Meadows and St Paul’s High School in Altona North. You report no social difficulties as a young person and were able to make and sustain a group of friends over time. You describe yourself as having been above average academically and despite some minor behavioural issues such as truancy and stealing, you were receiving B grades by year 12 and graduated with an ATAR of 78. You then attended RMIT where you completed a Bachelor of Computer Science.
33You were first introduced to drugs at around 16-17 years of age, initially using drugs such as cannabis at dance parties, but eventually graduating to methylamphetamine and GHB.
34You demonstrated a strong work ethic for many years despite using drugs, working as an IT analyst for a company known as Shape Group Australia between 2000 and 2017. In 2017, as drug use took over your life, your employment at Shape Group Australia was terminated due to theft of computer equipment belonging to the company, for which you received an adjourned undertaking.
35Despite this termination, you continued to work in short contract IT roles for various employers until 2020 when you became unemployed. You had, along with your brother Cuong, purchased a property in Footscray in 2019 which you lived in until 2021 with your then girlfriend Nicole. You met Nicole in a rehabilitation clinic. After you separated from Nicole you could no longer maintain the property on your own, and moved back in with your parents.
36You have made many attempts at rehabilitation. In 2015, at age 30, you spent 28 days as an in-patient at Raymond Hader clinic. You attended Refocus Rehabilitation Centre in Toorak in 2018 for one month, followed by 13 months as an out-patient between 2018 and 2019. Most recently you attended Edgewater Medical Clinic at Maribyrnong for general medical assistance in 2022.
37You report a history of psychotic episodes beginning in 2018, and a history of passing out, or falling over and hitting your head, when using GHB. I will discuss the significance of this in sentencing you later in these reasons.
38This is your first time in custody. Since your incarceration you have obtained employment in the prison kitchen as a chef, which you enjoy greatly. You have been in this position for over 8 months and supervise around six other prisoners in the preparation of meals. You are excelling in this position and believe you have found your professional calling. In furtherance of your desire to cook, you undertook a Food Safety Handling Course run by Box Hill TAFE.
39You attend Narcotics Anonymous every Wednesday and have remained drug-free in the prison setting, returning negative results in drug screens which have been intermittently and randomly conducted on you.
40You have a strong relationship with all of your family. Your father has health issues resulting from diabetes and your mother is his full-time carer, but they are both willing to assist you in any way possible. They were in court together with your siblings for your plea. You enjoy similar support from your brother, and from your sister who has attended drug counselling sessions with you on many occasions.
41You are very fortunate to have the family support you do. This is unusual in the experience of this court, and is a significant factor in my assessment of your prospects of rehabilitation.
Mental Health
42Your counsel relied on a report by psychologist Dr Paul Grech dated 19 December 2022 and a second report by neuropsychologist Laura Scott dated 22 June 2023. Testing by Dr Grech revealed you were in a highly vulnerable section of the community for depressive or anxiety-related disorder.[12] Dr Grech opined that decrements in your cognitive functioning have contributed to your poor decision making and inability to overcome your drug dependencies, which in turn underpins your offending behaviour.[13] Dr Grech further identified the potential of an acquired brain injury (ABI) resulting from your drug overdoses, and you were subsequently referred to Ms Scott for psychological testing.
[12] Psychological Report of Dr Paul Grech 19 December 2022, 7 (Exhibit D2).
[13] Ibid, 9.
43Ms Scott provided a detailed report to the court.[14] At the request of Her Honour Judge Hogan of this Court, before whom your case was originally listed in 2023, Ms Scott gave oral evidence and was cross examined on 20 February 2024.
[14] Neuropsychological Report of Ms Laura Scott dated 22 June 2023 (Exhibit D1).
44You reported to Ms Scott that you have had 10-15 drug overdoses from GHB and other substances, and this was corroborated by your twin brother Cuong and hospital reports obtained by Ms Scott.[15]
[15] Exhibit D1, 4-5.
45Following neuropsychological examination, Ms Scott reported that you present with severe impairments in verbal memory, moderate impairments in aspects of executive function (particularly response inhibition/impulse control), and mild impairments in higher attentional abilities, information processing speed, aspects of visual memory, and aspects of executive function.
46Ms Scott’s opinion based on these results and her examination of you is that your neuropsychological profile is consistent with an ABI due to the combined effects of long-term heavy use of methamphetamines and GHB, as well as likely hypoxic brain injury due to repeated episodes of drug-induced coma.[16] Ms Scott reports that you continue to show significant cognitive impairments despite 10 months of abstinence whilst in custody, and that this reduces the likelihood you will recover fully to your baseline level of cognitive function.[17] Ms Scott expanded on this theme:
Mr Nguyen’s memory impairment is significant and reduces his capacity to learn from past experience. This may account for signs of repeated offending behaviour. He would also have difficulty independently generating new routines or ways of coping that don’t rely on drugs. This in turn reduces his capacity to independently manage his drug use and increases the risk of reoffending[18]
[16] Ibid, 10.
[17] Ibid, 11.
[18] Ibid, 11 (emphasis added).
47Ms Scott considers that the symptoms of your ABI were likely significant contributors to your offending behaviour. Ms Scott reports that impairments such as yours can ‘seriously undermine a person’s capacity to make reasoned, rational decisions’[19] and that you are likely to make impulsive choices without stopping to consider the long-term effects. She considers this is consistent with your account that you bought the narcotics on impulse – you told Ms Scott that you did not consider the risks at the time, and that although you knew what you were doing was illegal, you did not consider the impact to the broader community.
[19] Ibid.
48Ms Scott was asked how your offending could be explained, given the offending involved a series of steps and decisions over time rather than a single impulsive choice or action. She explained that someone with symptoms of an ABI similar to yours would be more likely to make a decision on impulse to follow a course, then fail to re-assess that initial decision. Ms Scott’s opinion was not that you are completely incapable of choosing a new course.
49I found Ms Scott to be a particularly persuasive expert witness and have relied on her evidence.
Submissions
50Your counsel submitted that the impairments Ms Scott reports reduce your moral culpability for your offending and the need for specific and general deterrence, and that they ‘weigh heavily towards mitigation of sentence’. Specifically, your counsel relied on Verdins[20] limb 1, 3 and 4 when they submitted that your acquired brain injury reduces your moral culpability, and thereby reduces the weight that should be attributed to punishment and denunciation of your conduct, as well as the weight given to specific and general deterrence in your case.
[20] R v Verdins [2007] VSCA 102 (‘Verdins’).
51Ultimately, your counsel’s submission was that a ‘shorter than usual custodial term in relation to both head sentence and non-parole period’ should be imposed so that you can ‘effectively continue [your] rehabilitation and address issues relating to [your] cognitive function’.[21]
[21] Outline of Submissions on Behalf of Nam Nguyen dated 4 October 2023, [33].
52The prosecution submitted that the causal nexus between the ABI and your offending is unclear, and that your impairments should be seen in light of your admissions and in particular that you were able to use cryptocurrency to purchase drugs and attempt to facilitate the sale of these drugs to people in Melbourne and Perth. The prosecutor submits that this suggests a degree of planning and organised thought.
53The prosecution further submits that it is clear you were able to understand the wrongfulness of your actions, as evidenced by your comments reported by Ms Scott that ‘it’s serious because I am selling an illicit drug in a community and the community had an addiction to it…it’s harmful and illegal and destroys families’.[22] The prosecution therefore submit that specific and general deterrence should not be moderated.
[22] Exhibit D1, 4.
Matters in Mitigation
54Your plea of guilty at the committal stage, along with your full and detailed admissions in your record of interview with police, constitute powerful features of mitigation. Your plea is a recognition of responsibility by you and an indication of your remorse.
55The timing of your plea means that you are entitled to the augmented sentencing discounted recognised by the Court of Appeal in the case of Worboyes.[23]
[23] Worboyes v The Queen [2021] VSCA 169.
Prospects of Rehabilitation
56It is often difficult to assess an offender’s prospects of rehabilitation. Your case is no different.
57You are 38 years old. You were born in Australia and are well educated. You have a fairly positive work history and expressed the desire to Dr Grech to return to working in IT. You are musically talented and play piano and the ukelele.
58You have a supportive family. Your older sister has accompanied you to drug rehabilitation. Your parents and your twin brother are willing to assist you in any way they can. All four members of your immediate family were in court to support you at the hearing of your plea. These are all positive factors.
59However, you have a long history of drug abuse as detailed earlier in these reasons. Your efforts at drug-rehabilitation have been largely unsuccessful.
60You have some history of drug-related offending although that is not extensive. Your remand period is the first time you have been in custody.
61You have completed a number of alcohol and other drug abuse courses while on remand. According to a letter from Mandeep Kour of Caraniche Pty Ltd which runs such courses at Margoneet Correctional Centre, you have completed the 6-hour AOD and Stress Management Programme; the 12-hour Drug and Alcohol Treatment Program and the 60-hour Managing Cravings Program.[24]
[24] Letter to the Court from Mandeep Kour dated 27 June 2023 (Exhibit D3).
62You have also completed 9 modules of the ATLAS Program as well as ‘Healthy Relationships’, ‘Ice and Me’ and other similar courses.
63Significantly, your test screens reveal that you have remained drug-free while in custody. You have been working as a chef while in prison and have undertaken a Food Safety Handling Course.
64It is clear that you have made real efforts to rehabilitate yourself while in custody.
65I have discussed the relevance of your acquired brain injury to sentencing. It is also relevant to your prospects of rehabilitation. Ms Scott opines that your memory impairment is significant and reduces your ‘capacity to learn from past experiences’. It also reduces your capacity to independently manage your drug use and ‘increases the risk of offending’.[25]
[25] Exhibit D1, 11.
66Ms Scott expresses the view that your chances of rehabilitation ‘would be optimised if [you] could be connected with appropriate AOD and ABI services on your eventual release from custody’.[26] She gave evidence that such assistance may be available through the National Disability Insurance Scheme (NDIS) or may be funded by your parents.
[26] Ibid.
67It is also relevant that you have expressed remorse for your offending.
68On balance, I assess that if you can address your drug problems and receive treatment for your ABI, your rehabilitation prospects are reasonable to good.
Sentencing Principles
69Trafficking in a commercial quantity of a drug of dependence is a category 2 offence. A court sentencing an offender in respect of a category 2 offence must impose a term of imprisonment other than in combination with a community correction order unless one or more of the exceptions in s 5(2H)(a)-(e) applies. It was not submitted by your counsel that any of the exceptions apply in your case.
70Further, if I sentence you to a term of imprisonment on charge 1, I must sentence you as a ‘serious drug offender’ in respect of charge 2.[27] In such circumstances, protection of the community from you is the principal purpose for which I sentence you.[28] However, the prosecution does not seek the imposition of a disproportionate sentence.[29]
[27] Sentencing Act 1991 (Vic), s 6D.
[28] Ibid, s 6D(a).
[29] Ibid, s 6D(b).
Consideration
71I accept the evidence of Ms Scott that you have an ABI and that the symptoms ‘were likely significant contributors to [your] offending behaviour’.[30] Ms Scott explained the basis of this opinion in both her written report and her oral evidence.
[30] Exhibit D1, 11.
72I accept your counsel’s submissions that the evidence enlivens the Verdins principles so as to reduce your moral culpability and reduce the weight that needs to be given to both specific deterrence of you and general deterrence of the community.
73However, I consider that Ms Scott’s evidence about the effect of your ABI on your future risk of offending elevates the importance of community protection as a sentencing purpose.
74The prosecution referred the court to a number of cases that were said to be comparable to yours.[31] The cases involve a wide range of circumstances. In Ellis, a case involving trafficking in a commercial quantity of 1,4-Butanediol (3.5kg), the Court of Appeal reviewed a range of earlier decisions in such cases and observed that ‘sentences ranged from 2½ years to 5 years’ imprisonment’.[32]
[31] Gayed v The Queen [2021] VSCA 141; Al-Dimachki v The Queen [2021] VSCA 98; Arici v The Queen [2019] VSCA 228; DPP v Fatho [2019] VSCA 311; Ellis v The Queen [2018] VSCA 221 (‘Ellis’).
[32] Ellis (n 31) [29].
75I have considered these cases. I have also taken into account what the Court of Appeal said in Gregory (a case involving trafficking of a large commercial quantity) about the need for a corresponding increase in sentences for commercial quantity trafficking.[33]
[33] Gregory (n 10).
76However, ultimately such cases are of limited utility as this Court is required to impose a sentence that reflects the unique circumstances of your case.
Orders
77On Charge 1, attempted trafficking in a commercial quantity of a drug of dependence, you are convicted and sentenced to 3 years’ imprisonment;
78On Charge 2, trafficking in a commercial quantity of a drug of dependence, you are convicted and sentenced to 3 years and 3 months’ imprisonment;
79On Charge 3, possession of a drug of dependence, you are convicted and sentenced to imprisonment for 1 month;
80On Charge 4, possession of a drug of dependence, you are convicted and sentenced to imprisonment for 1 month;
81On Charge 5, possession of a drug of dependence, you are convicted and sentenced to imprisonment for 1 month;
82On the related summary offence of possession of a prohibited weapon without exemption, you are convicted and sentenced to imprisonment for 1 month.
83The sentence on Charge 2 is the base sentence.
84I direct that 6 months of the sentence on Charge 1 be served cumulatively on the base sentence.
85The sentences on the remaining charges are to be served wholly concurrently.
86The total effective sentence is therefore 3 years and 9 months.
87You are to serve 2 years and 6 months before you are eligible for parole.
88Pursuant to s 18 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’), 555 days is to be reckoned as time served in respect of the sentences imposed on you today.
89Pursuant to s 6AAA of the Sentencing Act, had you pleaded not guilty and been found guilty by a jury, the total sentence I would have imposed would have been 5 years’ imprisonment with a non-parole period of 3 years and 8 months.
90Finally, I direct that the records of the court must reflect that you have been sentenced in respect to Charge 2 as a serious offender.
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