Director of Public Prosecutions v Nichols (a pseudonym)

[2025] VCC 370

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

AT MELBOURNE

CRIMINAL JURISDICTION

DRUG AND ALCOHOL TREATMENT COURT

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELLIOT NICHOLS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2024; 17 December 2024; 19 March 2025
DATE OF SENTENCE:	26 March 2025
CASE MAY BE CITED AS:	DPP v Nichols (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 370

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Trafficking in a drug of dependence – commercial quantity; Trafficking in a drug of dependence; Possession of a drug of dependence; Possession of equipment that is capable of being used to make identification documentation; Possession of identification information; Possession of a prohibited weapon; Unauthorised possession of poison or controlled substance; Dealing with property suspected of being proceeds of crime; Unauthorised possession of police equipment

Legislation Cited:  Crimes Act1958; Sentencing Act1991; Victoria Police Act2013; Control of Weapons Act1990; Drugs Poisons and Controlled Substances Act 1981

Cases Cited:DPP (Cth) v Maxwell [2013] VSCA 50; R v Verdins & Ors (2007) 16 VR 269

Sentence:  Drug and Alcohol Treatment Order, custodial part of 30 months; Fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Fleming	Office of Public Prosecutions
For the Accused	Mr J. Adamo	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Elliot Nichols,[1] you have pleaded guilty before me to an indictment containing seven charges, together with four related summary offences.  Charge 1 on the indictment, trafficking in a commercial quantity of Butanediol, carries a maximum penalty of 25 years' imprisonment.  Charge 2 on the indictment, trafficking in methylamphetamine, carries a maximum penalty of 15 years' imprisonment.  Charges 3, 4 and 5 on the indictment, possession of heroin, amphetamines and diazepam, alprazolam and clonazepam respectively, carry maximum penalties of five years' imprisonment or 12 months' imprisonment if the court is satisfied on the balance of probabilities that the possession was not for the purposes of trafficking.  Charge 6 on the indictment, possession of equipment that is capable of being used to make identification documentation, and Charge 7 on the indictment, possession of identification information, carry maximum penalties of three years' imprisonment.  In terms of the related summary offences to which you have pleaded guilty, the maximum penalty for the offence of possessing a prohibited weapon is two years' imprisonment, the maximum penalty for the offence of dealing with property suspected of being proceeds of crime is two years' imprisonment, the maximum penalty for possessing police equipment carries a maximum penalty of 12 months' imprisonment, and the maximum penalty for possession of a Schedule 4 poison is a fine of up to 10 penalty units.

[1] A pseudonym.

2You also admitted the contents of your extensive criminal history.

Circumstances of the offending

3The circumstances of your offending were set out in the summary of prosecution opening dated 13 July 2024.

4Your offending can be briefly summarised.  At the time of your offending you were residing alone in a unit of the Arrow on Swanston apartments, located on Swanston Street, Carlton.  All of your offending took place on 7 March 2024.  On that day at about 7.38 am police attended at your unit to execute a search warrant.  Upon entering the unit you were observed in the bathroom with your arm in the toilet bowl.  A female was standing in the bedroom.  You were arrested.  The various items located as a result of the execution of the search warrant were set out at paragraphs 6 and 7 of the prosecution opening.

5Seventeen bottles containing 1,4-Butanediol were located in a duffle bag in the bedroom wardrobe, these forming the basis of Charge 1 on the indictment, trafficking in a commercial quantity of Butanediol.  Later analysis of the seized Butanediol revealed it to be a quantity of 4.415 kilograms, with the commercial quantity of Butanediol being 2 kilograms.

6Thirteen zip-lock bags containing methylamphetamine were located in the S-bend of the toilet and on the bedside table, these forming the basis of Charge 2 on the indictment, trafficking in methylamphetamines.  Subsequent analysis of the methylamphetamine revealed it to be in a quantity of 45.5 grams, representing 15 times the traffickable quantity of methylamphetamine and 0.2 times the commercial quantity of methylamphetamine.

7One zip-lock bag containing heroin was located in the S-bend of the toilet, this being referable to Charge 3 on the indictment, possession of heroin.  Subsequent analysis of this substance revealed it to be in a quantity of 7 grams, with the traffickable quantity of heroin being 3 grams.  You have conceded that this amount of heroin was not merely for the purposes of your own use, hence the higher maximum penalty of five years' imprisonment applies in your case.

8Seventy-one dexamphetamine or amphetamine tablets across two bottles were located in a bag in the bathroom, this being referable to Charge 4 on the indictment, possession of amphetamine.  Given the quantity of tablets found, I have determined that the higher maximum penalty applies also to this possession charge.

9Charge 5 on the indictment is a rolled-up charge incorporating the possession by you on 7 May 2024 of diazepam, alprazolam, and clonazepam.  In that regard, four and a half Valium or diazepam tablets were located in a bag in the bathroom, 16 Valium or diazepam tablets were located in the bedroom wardrobe, six diazepam tablets were located in a bag in the bathroom, one Xanax or alprazolam tablet was located in a bag in the bathroom, and one orange tablet containing clonazepam was located in a bag in the bathroom.  These substances collectively form the basis of Charge 5 on the indictment, possession of a drug of dependence.  As conceded by the prosecution, I am satisfied on the balance of probabilities that these substances were possessed by you for your own use.  Therefore the reduced maximum penalty of 12 months' imprisonment applies with regard to Charge 5 on the indictment.

10Five Viagra tablets were located in the bedroom wardrobe, these forming the basis of related Summary Charge 17, possession of a Schedule 4 poison.

11Further, as a result of the execution of a search warrant, police found a printer used for printing identification cards located in the bedroom wardrobe, a Lenovo laptop located on the bed and 15 blank Medicare cards located on the bedroom floor within a black pencil case, these items forming the basis of Charge 6 on the indictment, possession of equipment that is capable of being used to make identification documentation.

12Police also located three drivers licences and one Victorian proof of age card, each depicting your image and the details of other individuals located in various locations in the unit, these forming the basis of Charge 7 on the indictment, possession of identification information.

13Police also located a Victoria Police knitted jumper located in the bedroom wardrobe, this forming the basis of related summary Charge 9, possession of police equipment.

14Police located a black double-edged dagger located on the bedside table, this forming the basis of related summary Charge 13, possession of a prohibited weapon.

15Finally, police located various items throughout the unit which form the basis collectively of related Summary Charge 18, dealing with property suspected of being proceeds of crime.  Those items included 150 miscellaneous cards not in your name, nine Australian passports not in your name, two overseas passports in the name of others, various other forms of identification not in your name, a bag containing miscellaneous personal documents not in your name, a prescription for Viagra in the name of another, two mobile phones and two debit cards in the name of others.

16A large quantity of zip-lock bags, scales and Australia Post postage bags were also located throughout the unit.

17When subsequently interviewed by police, you provided no comment to the allegations.  You have remained in custody since your arrest by police, a period of 384 days up to but not including today.

Nature and gravity of your offending

18In analysing the nature and gravity of your offending, I have of course had regard to the relevant maximum penalties which in my view appropriately reflect the general gravity of your offending conduct.  Charge 1 in particular involves trafficking in a commercial quantity.  It is often said that sentencing for drug-related offending, particularly trafficking, is a quantity-based regime and, all things being equal, the greater the amount trafficked, the more serious the offending.  You have pleaded guilty to trafficking 2.2 times the commercial quantity threshold of Butanediol.  However, while the relevant legislation does not distinguish between different categories of drugs in respect of the harm caused or dangerousness, courts have recognised that Butanediol is a lower-value drug and relatively easier to access and the likely lower yields from trafficking particular amounts are relevant in considering the scale of the proposed operation and that comparatively lower sentences have been imposed given the reward differential.[2]  Your offending in relation to all charges to which you have pleaded guilty is limited to a single date.  I accept that many of the substances found in your unit were connected to your own personal use; however, the fact remains that a significant variety of substances were located by police.  The quantity of methylamphetamine located by police which is referable to the trafficking of methylamphetamine charge, in excess of 45 grams, is well in excess of the traffickable quantity of methylamphetamine.  Ice is a pernicious substance which has caused untold grief in the community and your involvement in the trafficking of this particular substance is concerning.  Overall I consider that there were indicia of active trafficking and related operations in the unit, having regard to the various substances located in various places, the large quantity of zip-lock bags, scales and Australia Post postage bags located throughout the unit.  Concerningly, there was a considerable set-up for the creation of false identification documents, which included a card printer and laptop that were likely used to print identification cards, together with 15 blank Medicare cards and various forms of identification in other people's names.  These items are all highly concerning in the context of the charges to which you have pleaded guilty and lead me to infer that this was a pretty active operation on your part.

[2]DPP (Cth) v Maxwell [2013] VSCA 50 at paragraph 33

Level of culpability

19Your counsel did not submit that your moral culpability for the offending was reduced in any way due to any mental impairment pursuant to the Verdins principles.  You have an extensive criminal history which includes a prior conviction for trafficking in methylamphetamine from 26 February 2020 which formed part of an aggregate sentence of imprisonment of 16 months with a non-parole period of 10 months.  Your extensive and relevant criminal history highlights your level of culpability for the current offending, as you must surely have known of the significant consequences for offending in this manner yet you chose to reoffend.  Indeed, as conceded by your counsel, you offended just short of four months after the expiration of your most recent community correction order in November 2023.  In all the circumstances I agree with the prosecution that your moral culpability for the offending must be seen as high.

Personal circumstances

20Turning now to your personal circumstances, in analysing your personal history I have taken into consideration the details contained in your counsel's outline of submissions for determination hearing dated 18 March 2025, expanded upon in oral submissions before me on 19 March 2025 together with the details contained in the psychological report of Warren Simmons dated 25 July 2024, the psychiatric report of Dr Adam Deacon dated 9 November 2024 and the various Drug and Alcohol Treatment Court assessment reports provided in this matter.

21You are now 29 years of age.  You were born in Townsville but raised between Darwin, Sydney and Melbourne due to your father's employment as an airport firefighter.  Your mother is a nurse.

22You have a history of family alienation and unaddressed trauma owing to exposure to family violence by your father to your mother and then later to you.

23It appears that your schooling was interrupted due to the various locations due to your father's employment, but you managed to successfully complete Year 12 at Strathmore Secondary College.

24You left home at 16 to reside in a friend's bungalow and two years later when your family relocated to Tasmania you did not follow them and remained in Melbourne.

25By this time you were a daily user of cannabis, having first smoked this substance at the age of 15.  At the age of 18 you were introduced to both ice and GHB.  You have identified ice as your primary substance of abuse.  Daily use began immediately and you frequently used 1.7 grams of ice and 100 mils of GHB or Butanediol daily.

26Your counsel indicated that your use of GHB, which started at the age of 18, was initially motivated by you seeking to avoid the impacts of cannabis upon your mental health.

27Within six months of this occurring, according to your counsel, you were first incarcerated.  The chronology of your offending and incarceration was set out in detail in your counsel's written submissions.  Essentially over the past decade you have amassed an unenviable record of prior criminality and multiple sentences of imprisonment which now place you at risk of institutionalisation.  As highlighted by the prisoner indent provided by your counsel, you appear to have relapsed quickly upon release from prison.

28As indicated by your counsel, you have, however, managed to sustain two periods of time where you have been offence-free.  The first was for a period of almost 12 months from January 2021 in the context of being in a relationship and the restrictions brought about by COVID-19.  The second period corresponds with the 18-month community correction order imposed in March 2022.  For a sustained period between 17 April 2022 and 16 October 2023 you navigated your way through a significant community correction order which had various conditions including supervision, drug treatment, mental health treatment and unpaid community work.  This does in my view to an extent demonstrate your ability to comply with court orders and your conscientious efforts with regard to your rehabilitation.  However, as indicated by your counsel, within four months of the community correction order expiring you were committing the current offences.

29You have clearly experienced a degree of problematic mental health over the years, most likely in connection with your polysubstance abuse issues.  Psychiatrist Dr Adam Deacon refers to your self-report of being prescribed Seroquel by your general practitioner from the age of 18.  Dr Deacon describes your approximate 10-year history of psychotic symptoms and opines that it is not entirely clear whether you may suffer from a form of schizophrenia or whether your symptoms are drug-induced.  According to Dr Deacon your childhood would have left you vulnerable to substance use and there does appear to be a significant connection between your substance use and your offending behaviour.

30Your relationship with the woman you were seeing around the time of the current offending appears to be at an end and you have indicated that she is currently in custody in Tasmania and may be for some time.  Your mother appears to remain supportive, given her endeavours to facilitate ongoing accommodation for you which have subsequently fallen through.  She remains in Tasmania, and you have maintained a degree of contact with her.

31Overall I agree with the prosecution that your prospects for rehabilitation must be seen as guarded in the context in particular of your extensive criminal history.  Your future rehabilitation in my view is closely connected to your willingness and ability to engage in comprehensive drug and alcohol related specialist interventions, whilst also dealing with any underlying psychological and mental health issues.

Matters relevant to the Drug and Alcohol Treatment Court Determination Hearing

32I turn now to matters relevant to the making of a drug and alcohol treatment order.  The purposes of a drug and alcohol treatment order are to facilitate your rehabilitation, to take account of your drug or alcohol dependency, to reduce the level of criminality associated with drug or alcohol dependency and to reduce your health risks associated with drug or alcohol dependency.  Importantly, if I am considering making such an order, I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation as having greater importance than other sentencing purposes such as denunciation and general deterrence.  This is in my view significant in relation to your case.  But for the essential reordering of applicable sentencing purposes and the primacy now given to your rehabilitation, the sentencing exercise in your case would give prominence to matters of denunciation, specific deterrence, general deterrence and community protection.

33The criteria for the making of a drug and alcohol treatment order are set out in s18Z of the Sentencing Act 1991. Of relevance to this case, I am satisfied on the balance of probabilities that you are dependent on drugs and that your dependency contributed to the commission of the offending now before me. I note in your case that neither the dependency criteria nor the contribution criteria were controversial as far as the prosecution are concerned.

34In order to impose a drug and alcohol treatment order in your case I must be satisfied that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years.  The prosecution in this case conceded that it was open to the court to find that a sentence of no more than four years could be appropriately imposed in your case.  Having carefully considered your case, I have in fact determined that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years.  In coming to that conclusion, I have considered the relevant maximum penalties for the offending to which you have pleaded guilty, the nature and gravity of your offending and your level of culpability for it and the various mitigatory factors present in your case.  You pleaded guilty at an early stage in these proceedings, warranting a significant mitigatory allowance.  Your plea of guilty demonstrates your acceptance of responsibility and your willingness to facilitate the course of justice.  Having regard to your evidence on oath before me at the hearing on 19 March 2025, I am satisfied that a further mitigatory allowance is warranted by virtue of your remorse for your offending.  In evidence you indicated that you had had time to reflect and you realised that your actions were wrong.  A modest mitigatory allowance on the basis of your remorse is therefore warranted.  You have been in custody now for a significant period of time, 384 days.  I accept having regard in particular to your personal history that this is a significant period of time to have this matter hanging over your head and a mitigatory allowance is warranted by virtue of the anxiety caused by this protracted period before finalisation.

35Pursuant to s18Z(3) of Sentencing Act 1991, I must not make a drug and alcohol treatment order unless satisfied in all the circumstances that it is appropriate to do so.  This involves a consideration of your suitability for an intensive order such as a drug and alcohol treatment order.  Having read and considered the six assessment reports from the Drug and Alcohol Treatment Court assessors, concerns have clearly been held until recently with regards to your suitability for an order, having regard to questions surrounding your honesty and motivation.  Whilst some reservations clearly remain, I accept that you have now been found suitable by a Drug and Alcohol Treatment Court case management assessor and the concerns with regard to your honesty and motivation have been ameliorated during the course of the assessments. 

36You gave evidence before me on 19 March 2025 with regard to your motivation to undertake the rigours of a drug and alcohol treatment order.  Overall, I formed the view that you were conscientiously answering questions, including questions from myself, in what must have been a stressful environment.  As I indicated to both you and counsel at the end of your evidence, I remained concerned to a degree that you were not being entirely transparent in your answers.  However, on balance I am prepared to accept your evidence that you have reflected on your life and your personal trajectory and you are aware, to put it bluntly, that you are running out of options.  And I accept that you are now motivated to do your best if given the opportunity to undertake a drug and alcohol treatment order, which has as its foundation the importance of honesty.

37Accordingly, having carefully considered the criteria for the making of a drug and alcohol treatment order set out in s18Z of the Sentencing Act1991 and having carefully considered all of the relevant reports and submissions, I am satisfied that it is appropriate in all the circumstances to make a drug and alcohol treatment order in your case.

38Mr Nichols, would you please stand.

Sentence to be imposed

39In relation to all charges on the indictment, together with related Summary Charges 9, 13 and 18, you are convicted and placed upon a drug and alcohol treatment order.  This order commences today.

40A drug and alcohol treatment order has two parts:  the treatment and supervision part and the custodial part.  The treatment and supervision part itself has two parts which are as follows.

41The core conditions, which are that:

(a)   you must not commit whether in or outside of Victoria another offence punishable on conviction by imprisonment during the time the order is in force;

(b)   you must attend Drug Court when required by the court to do so;

(c)   you must report to the Melbourne Drug Court house within two clear working days after the order is imposed;

(d)   you must report to and accept visits from the members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions and directions from the Drug Court team.

42The core conditions will operate for 30 months or until further order.

43The program conditions, which are that:

(a)   comply with the individual treatment plan dated 24 March 2025 and signed by you today;

(b)   you must submit to drug and alcohol testing as directed;

(c)   you must submit to detoxification or other treatments specified in the order as directed;

(d)   you must attend vocational educational and employment programs as directed;

(e)   you must submit to medical psychiatric and psychological treatment as directed;

(f)    you must reside as directed by the Drug and Alcohol Treatment Court;

(g)   You must comply with a curfew that you remain at your address between the hours of 9 pm and 6 am;

(h)   you are not to use a drug of dependence without lawful authorisation;

(i)    you are to abstain from alcohol;

(j)    you must not drive a motor vehicle;

(k)   you are to do or not do anything else that the Drug Court considers necessary or appropriate concerning your drug and alcohol dependency and the personal factors that the Drug Court considers contributed to your criminal behaviour.

44These program conditions will operate for two years or until further order.

45The custodial part of the drug and alcohol treatment order is the term of imprisonment that I would have imposed had I not placed you on a drug and alcohol treatment order and it is a term of imprisonment of two years and six months.  That is made up as follows:

(a)   On Charge 1 of the indictment, trafficking in a commercial quantity of a drug of dependence, two years' imprisonment;

(b)   On Charge 2 on the indictment, trafficking in a drug of dependence, 12 months' imprisonment;

(c)   On Charge 3 on the indictment, possession of a drug of dependence, three months' imprisonment;

(d)   On Charge 4 on the indictment, possession of a drug of dependence, one month imprisonment,

(e)   On Charge 5 on the indictment, 21 days' imprisonment;

(f)    On Charges 6 and 7 on the indictment, an aggregate term of 12 months' imprisonment;

(g)   On related Summary Charge 9, one month imprisonment;

(h)   On related Summary Charge 13, one month imprisonment; and

(i)    On related Summary Charge 18, two months' imprisonment.

46I order that three months of Charge 2 on the indictment and three months of the aggregate term imposed on Charges 6 and 7 on the indictment be cumulative upon the sentence on Charge 1, making a total term of two years and six months' imprisonment.

47I declare that you have served 384 days of pre-sentence detention.

48In relation to related Summary Charge 17, you are convicted and fined the sum of $200.

49Pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty but been found guilty at trial I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years' imprisonment.

50Finally I make the forfeiture and disposal orders which have been sought, those orders not being opposed by you.

51Take a seat for a moment, Mr Nichols. 

52Ms Fleming, firstly to you, does that cover everything?  Have I missed anything or any ambiguities?

53MS FLEMING:  I don't seek to make any submissions, Your Honour.

54HIS HONOUR:  Same question to you, Mr Adamo.

55MR ADAMO:  No, Your Honour.

56HIS HONOUR:  The order will be brought down to the dock for Mr Nichols to sign.  Mr Adamo, could you please accompany my associate and make sure that your client understands what he is signing and we will take it from there, thanks.

57MR ADAMO:  Indeed, Your Honour.