Director of Public Prosecutions v Orlov
[2023] VCC 444
•22 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02131
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER ORLOV |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 February 2023 |
DATE OF SENTENCE: | 22 March 2023 |
CASE MAY BE CITED AS: | DPP v Orlov |
MEDIUM NEUTRAL CITATION: | [2023] VCC 444 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of possessing a trafficable quantity of unregistered firearms, trafficking in a large commercial quantity of a drug of dependence, possession of a drug of dependence, knowingly dealing with the proceeds of crime, possessing cartridge ammunition, possessing a prohibited weapon, unlicenced driving – significant planning and activity – elaborate steps to avoid detection - limited but serious criminal history – history of drug use - attention-deficit/hyperactivity disorder and a substance use disorder – consideration of the standard sentence scheme – sentenced as a serious drug offender – plead guilty at a very early opportunity – evidence of remorse – positive prospects of rehabilitation – imprisonment burdensome due to Covid-19 – serious offender declaration
Legislation Cited: Firearms Act 1996 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP vChang (A pseudonym) [2021] VCC 1869; DPP vNatale [2022] VCC 1199; DPP v Larrain [2022] VCC 1405; DPP v Assad [2022] VCC 1422; Brown v The Queen (2019) 59 VR 462; Worboyes v The Queen [2021] VSCA 169; Bruce v The Queen [2022] VSCA 100; Al Janabe v The Queen [2021] VSCA 252; DPP v Kumas [2021] VSCA 215; Quah v The Queen [2021]; Dukic v The Queen [2021] VSCA 18; R v Verdins (2007) 16 VR 269; Rahmani v The Queen [2021] VSCA 51
Sentence: 16 years imprisonment with a non-parole period of 10 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant | Office of Public Prosecutions |
For the Accused | Mr C. Farrington | Sarah Tricarico Lawyers |
HIS HONOUR:
Introduction
1Mr Orlov, I propose to sentence you to a total sentence of 16 years imprisonment and set a non-parole period of 10 years' imprisonment. I will declare your 875 days of pre-sentence detention (excluding today) as time served under my sentences today.
2You pleaded guilty to charges of possessing a traffickable quantity of firearms, trafficking in a large commercial quantity of a drug of dependence, possession of a drug of dependence and three charges of dealing with the proceeds of crime. You have also pleaded guilty to five related summary offences.
3The circumstances of your offending are described in part of the document entitled, 'Draft summary of prosecution submissions on plea', which is Exhibit A.
Maximum penalties
4At this early stage, it is worthwhile stating the maximum penalties for the offences to which you have pleaded guilty:
(a)trafficking in a large commercial quantity of a drug of dependence – life imprisonment;
(b)possession of a traffickable quantity of unregistered firearms – 1,200 penalty units or 10 years' imprisonment;
(c)possession of a drug of dependence – five years' imprisonment;
(d)knowingly dealing with the proceeds of crime – 15 years imprisonment;
(e)possession of cartridge ammunition – 40 penalty units;
(f)possession of a prohibited weapon – 240 penalty units or two years' imprisonment;
(g)unlicensed driving – 60 penalty units or six months' imprisonment.
Circumstances
5Between 27 December 2019 and 28 October 2020, you and Steven Furman conducted a business of trafficking methylamphetamine. Together, you would obtain the drug from suppliers, package it into 1-ounce packets and sell the drug to your regular customers.
6Exhibit A describes the people associated with you in your drug trafficking. Your close associate and partner was Steven Furman. He assisted you in
co-ordinating the collection of drugs from suppliers. You and he regularly discussed the buying and selling of illicit drugs and the costs of and profits from those transactions. These discussions included your clients, which revealed a network of others.7Exhibit A also identified the two motor vehicles used in your drug trafficking business. You affixed false number plates to one of the vehicles. During your offending, you had two sets of false number plates.
8You used the proceeds of your offending to buy motor vehicles, the subject of Charge 5.
9Throughout the period of your offending, you were a prohibited person under the Firearms Act 1996. You were a prohibited person because your offending occurred within five years of you finishing serving the term of imprisonment imposed in March 2017 for trafficking a commercial quantity of a drug of dependence.[1]
Charge 1: possession of a traffickable quantity of firearms
[1] Section 3(a)(v) of the Firearms Act 1996.
10On 27 December 2019, under warrant, investigators searched a unit numbered Z219 at a Kennards Storage facility at Hawthorn East. They found a Winchester hunting rifle with its serial number removed; a bag containing 141 rounds of assorted firearm ammunition; and a pencil case containing seven 9-millimetre Luger rounds of ammunition. The hunting rifle forms part of Charge 1. The unit had been hired by you. These 148 rounds of cartridge ammunition constitute Summary Charge 50, possession of cartridge ammunition while unlicensed.
11During 2020, the police installed a listening device in your motor vehicle and apartment.
Charge 2:trafficking in a large commercial quantity of methylamphetamine
12Between 7 July 2020 and 28 October 2020, you sourced methylamphetamine in large quantities from a number of suppliers. You bought methylamphetamine in quantities of 1 kilogram or more at a time. On occasions, you and your
co-accused, Mr Furman, would provide each other with the drug. You would repackage the drug into 1-ounce quantities and then sell them to your customers.13On 28 October 2020, your apartment was searched under warrant. Among other things, the searchers found 1.162 kilograms of methylamphetamine. It is agreed between you and the prosecution that, overall, you trafficked 10 kilograms of methylamphetamine. It was a mixture of methylamphetamine and something or somethings else. At the relevant times, a large commercial quantity of methylamphetamine was 750 grams or more where the substance is a mixture of the drug and something or somethings else.
14The fortunate intervention of the police prevented the distribution of the 1.162 kilograms into the community, but the rest of the 10 kilograms was distributed to the great harm of its recipients.
Charge 3
15On 28 October 2020, you were arrested at your apartment. Investigators searched the apartment and a motor vehicle. Apart from the 1.162 kilograms of methylamphetamine, they found supplies and equipment used for its packaging. They also found a modest quantity of cannabis in a
table in bedroom 4. This last circumstance constitutes Charge 3, possessing cannabis.Further part of Charge 1
16During the search, investigators found in a side table in bedroom 3:
a .32 calibre semi-automatic pistol; a .455 selective double-action revolver pistol; a .455 semi-automatic pistol; a .357 calibre selective
double-action revolver; and a 9-millimetre Luger semi-automatic pistol.
All of these firearms were unregistered as was the firearm found in the storage unit in 2019.Charge 4
17Also, during the search, the investigators found in the lounge and in two bedrooms different amounts of money: $1,030; $40,000; $7,800; and $92,213. These amounts total $141,045. This constitutes Charge 4, knowingly dealing with the proceeds of crime.
Charge 5
18Elsewhere in the apartment, the investigators found gold and silver coins. The finding of the coins constitutes Charge 5, another charge of knowingly dealing with the proceeds of crime.
Charge 6
19On the same day and in the apartment complex, the investigators found a Mercedes-Benz E63 sedan and a Volkswagen Scirocco hatch. Each vehicle was used by you. On 4 February 2021, they found a red Holden Commodore sedan in storage space rented by you. These circumstances constitute Charge 6, a charge of knowingly dealing with the proceeds of crime.
Summary charges
20The circumstances of the offences in the summary charges are picked up in Exhibit A.
Criminal history
21In terms of court appearances, you have a limited history confined to two appearances in 2017. In terms of the seriousness of your offending, the charges were serious.
22On 6 March 2017, in this court, you were sentenced to 37 months' imprisonment with a non-parole period of 24 months' imprisonment for a charge of trafficking a commercial quantity of methylamphetamine, two charges of possessing a drug of dependence, possessing cartridge ammunition without a permit and driving while disqualified.
23On 8 August 2017, you were sentenced to six months' imprisonment for three charges of deception and identity theft.
Personal circumstances
24You are now 34. You were born in Siberia. You are an only child. You have never met your father. When you were 10, your mother and stepfather emigrated to Australia. Your mother and stepfather separated after you left home. They both returned to Russia when you were in your early 20s. You have not spoken to your mother since then. You have no dependants.
25Your stepfather was an alcoholic. He was physically abusive towards you. Some of this was at your mother's direction: she was a strict disciplinarian. Your mother and stepfather fought. Your stepfather stopped abusing you when you were 15. You believed he became depressed after discovering your mother's infidelity.
26You received some education in Russia. In Australia, you completed Year 11 at a secondary college before being expelled. You completed your VCE at a TAFE.
27Between 2007 and 2013, you worked as a head barista and then manager for an entity called the Zouki Group of Companies. Samuel Zouki, the managing director of that entity, speaks very highly of you as an employee and friend. Among other things, he said:[2]
He has always been a very genuine, conscientious individual whose loyalty and compassion made him a favourite with our customers and a role model for junior staff.
[2] Letter dated 17 February 2023.
28This job took you to Sydney, Canberra and Brisbane. You told the psychologist, Ms Cidoni, you left because the work was difficult, and it took a toll on your mental health.
29Following your release from custody in 2019, you worked briefly in a bakery.
30You have had two relationships. The first occurred in your teenage years. The second lasted for about 18 months and ended when you were about 28. You have no children.
31You drank alcohol as a teenager. You started using cannabis at 16. You used cocaine daily after your first relationship ended. You have tried MDMA and amphetamines. You have used methylamphetamine for many years. You were using it when you were remanded on these offences. You told Ms Cidoni:[3]
He described his use as out of control and said it got to a point where
I needed it to get out of bed. He said the attraction to the drug was it slowed down his thoughts and helped him to concentrate.[3] At [44].
32Since April 2021, you have undertaken drug and alcohol counselling.
Psychologist
33Gina Cidoni is a psychologist. At the request of your solicitors, she interviewed you on 12 and 13 February 2023 and reported.[4]
[4] Report dated 18 February 2023.
34You explained your drug offending to Ms Cidoni as a consequence of your relapse into drug usage, its escalation and falling in with 'the same unhelpful peer group'.
35Because your interviews were audio-visual rather than in person, Ms Cidoni could only apply the Wechsler adult intelligence scale with results varying between borderline and high average. The borderline assessment may be due to English being your second language.
36Using other tests, Ms Cidoni diagnosed you as suffering from an
attention-deficit/hyperactivity disorder and a substance use disorder. The latter is in remission because you are in prison. The former is untreated and predisposes you towards poor impulse control, lack of attention and a desire for immediate gratification without consideration of the consequences. To her, these symptoms and your drug use 'placed' you at the offending.37There are two paragraphs in her report which are instructive:[5]
Lack of self-control in terms of the offending is linked to his mental presentation, indicating difficulty with self- and goal-directed thinking, and ADHD also affects his ability to regulate and manage his emotional states and impulses. His ability to see beyond himself, to consider others' perspectives and the long-term consequences, is reduced.
Mr Orlov's upbringing featured considerable negative exposure and trauma as well as having detached caregivers. These factors combined all relate to his presentation and offending. Significant adversity in his formative years compromised his capacity to function adaptively and responsibly.
[5] At [73] and [74].
38Ms Cidoni recommended areas of treatment.
Discussion
Purposes
39Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:
(a)to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b)to deter the offender and other persons from committing offences of the same or a similar character;
(c)to establish conditions in which it is considered that the offender's rehabilitation may be facilitated;
(d)to manifest the denunciation of the type of conduct the offender has engaged in; and
(e)to protect the community from the offender.
40Subject to other considerations in relation to the trafficking charge, the purposes of just punishment, deterrence, general and specific, protection of the community and rehabilitation are engaged.
41Apart from Part 2A of the Sentencing Act, the nature of the trafficking offence places just punishment, general deterrence and denunciation at the forefront of the sentencing purposes.
42Even before the advent of Part 2A of the Sentencing Act, specific deterrence and protection of the community from you were very important purposes. You started committing the trafficking offence within months of your release from custody for trafficking a lesser, but significant, quantity of the same drug. Part 2A elevates the importance of specific deterrence and community protection.
Charge 1
43Regarding Charge 1, you were a prohibited person at the time of committing this offence and should not have possessed the firearms at all. The firearms were unregistered. Registration enables oversight by the relevant authorities. Lack of registration avoids this. There were six firearms, which were intended to be used for a criminal activity. These factors are indicative of the gravity of the charge and bring to the forefront the sentencing purposes of general and specific deterrence. However, as the prosecutor pointed out, one must avoid punishing you for this offence and using your possession as an aggravating feature of the drug trafficking offence.
44Looking at the descriptions of the six firearms, they seem to be highly dangerous weapons. They include three semi-automatic pistols and two selective double-action revolvers. These are firearms which can be concealed. These pistols and revolvers were found in a hidden compartment of a side table in the third bedroom of your apartment. As smaller weapons, they are easy to use. This charge of possessing a traffickable quantity of firearms is a significant example of the offence.
Charge 2
45The prosecutor drew my attention to several judgments of the Court of Appeal for these propositions:
(a)general deterrence is of great importance. Its importance is reinforced by the prevalence of the offence of trafficking in methylamphetamine;
(b)where the acts of trafficking in a drug of dependence is concerned, the potential harm is viewed as seriously as the actual harm. Some of the drugs found in your possession had not reached their ultimate destination although, given the opportunity, they would have done so;
(c)the quantity of the drug trafficked is important. Other things being equal, the greater the quantity trafficked, the more serious the trafficking offence. In your case, the amount trafficked was many times the threshold quantity for the offence.
46Given the seriousness of the charge, it is superfluous to note it is a category 1 offence under the Sentencing Act and what flows from that categorisation.
47In assessing the gravity of the offence in Charge 2, I note it was committed over a three-and-a-half-month period. This is a significant period, only brought to an end by the actions of the police. There was significant planning and activity. The drugs were bought from a number of suppliers and in largish quantities. It took organisation to arrange meetings with those suppliers. The drugs were repackaged into 1-ounce lots and then sold by you to your customers. There were a great many 1-ounce lots of methylamphetamine you sold, totalling about 9 kilograms. The overall weight of the methylamphetamine you sold was more 13 times the threshold of a large commercial quantity of methylamphetamine where the threshold is 750 grams. This is a very large amount of the drug trafficked.
48Your counsel referred to the case of Chang and Tsao.[6] It contains an apt statement of the dreadful effects of methylamphetamine. The judge said:[7]
The seriousness of your offending lies in the potential for a very significant amount of deleterious, illicit drugs to find their way onto the streets of our community and feed the misery of those who use them, with the attendant toll on our community, although there is no evidence as to how or when distribution of the drugs was to take place. That toll involves adverse effects on the physical and mental health of users, the commission of criminal offences by users, and adverse consequences to people who may [be] the victim of such crimes, a burden on our health and hospital systems which must deal with users suffering drug overdoses or other impaired health issues, a burden on our police who must detect drug-related crimes and ensure that offenders are charged and brought before the courts, the costs to an entire community of a very significant number of people who come before the courts for drug-related crime and, then, of course, the additional cost of housing those people in custody to serve terms of imprisonment or funding rehabilitative dispositions in the community.
[6] [2021] VCC 1869.
[7] At [48].
49I will discuss current sentencing practices later. The prosecutor referred me to sentencing appeals in the Court of Appeal where the quantity of methylamphetamine ranged from 1.78 times to 10.92 times the large commercial quantity threshold. However, there have been recent cases in this court where the quantity of the drug was very much larger than the threshold and much larger than the amount you trafficked.[8]
[8] Natale [2022] VCC 1199 – 169.9 kilograms; Larrain [2022] VCC 1405; and Assad [2022] VCC 1422.
50You and Mr Furman took elaborate steps to avoid detection. You used an encrypted service to communicate with each other. When speaking to each other, you used a code, which fortunately, investigators were able to decipher. You registered motor vehicles in the names of corporations. You arranged for false registration plates to be affixed to motor vehicles which you used to meet customers. You took other steps to avoid the police connecting you with those motor vehicles.
51This offence cannot be seen as a manifestation of your
attention-deficit/hyperactivity disorder and your drug usage. It occupies too long a period and involves too much planning and organisation.Charge 3
52In relation to Charge 3, you possessed 12.3 grams of cannabis L. This is not a small quantity, but it is still a relatively modest amount.
Charge 4
53This charge involves $141,045 in cash, which is a sizeable amount.
Charge 5
54Charge 5 involves four gold and three silver coins. The estimated value of the gold coins is $6,000 and the silver coins, $200 to $400.
Charge 6
55Charge 6 involves three motor vehicles. You were very interested in motor vehicles. You devoted a large amount of your time maintaining and modifying them. One of the reasons for your drug trafficking was to finance your interest in motor vehicles.
Moral culpability
56You are thoroughly culpable for these offences. Nothing reduces your level of culpability. I have quoted passages from Ms Cidoni's report. I cannot see how the symptoms of ADHD coupled with the effects of your addiction to methylamphetamine could explain the scope of your drug trafficking and other activities. You and Mr Furman formed an arrangement where there was largescale drug trafficking for profit. Your activities were planned, complex, purposeful, widespread and protracted. Ms Cidoni identified symptoms and the effects of your addiction, which do not lessen your culpability for those activities.
57One must remember you committed these offences after being penalised for trafficking in a commercial quantity of the same drug. You were released from custody on 16 May 2019. The offending in Charge 1 started some seven months after your release. Imprisonment did not deter you.
58You were aware of the serious consequences of your trafficking on a large scale. In a conversation with Mr Furman, you said:
‘We are fucked, we are fucked. We are both doing life sentences, life, life.’
Standard sentence scheme
59On 1 February 2018, the standard sentence scheme commenced operating. Only a few criminal offences are standard sentence offences for which standard sentences are prescribed. The offence contained in the charge of trafficking in a large commercial quantity of a drug of dependence is one such offence. The standard sentence for that offence is 16 years' imprisonment. What is the meaning of a standard sentence?
60First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.[9] The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[10] Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[11]
[9] Section 5A(1)(b).
[10] Section 5A(3).
[11] Section 5B(2)(a).
61In Brown v The Queen[12], the court discussed the standard sentence scheme. At paragraph 4, it said:
The key new requirement is that a judge when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:
·is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
·does not affect the established 'instinctive synthesis' approach to sentencing;
·does not require or permit 'two-stage sentencing';
·does not otherwise affect the matters which the court may, or must, take into account in sentencing.
[12] (2019) 59 VR 462.
Non-parole period
62The scheme sets out the non-parole periods for standard sentence offences. Unless I consider it is not in the interests of justice, the non-parole period must be at least 60 per cent of the sentence imposed on the standard sentence offence; namely, the offence of trafficking in a large commercial quantity of a drug of dependence.
Serious drug offender
63The effect of the sentence imposed on 6 March 2017 of the trafficking in a commercial quantity of methylamphetamine is you are to be sentenced as a serious drug offender on the trafficking charge in this case.
64Part 2A of the Sentencing Act deals with the sentencing of serious offenders including serious drug offenders. Since imprisonment for the charge of trafficking is the only reasonable sentencing disposition, then several propositions of the part are relevant.
65First, in determining the length of the sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed.
66Second, in order to achieve that purpose, I may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective seriousness. The prosecution does not seek a disproportionate sentence and I agree it is not warranted.
67Third, unless I otherwise direct, the sentence on the charge of trafficking must be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on you, whether before or at the same time as that term.
68Fourth, I must cause to be entered in the records of the court the fact you are sentenced as a serious offender.
69Pausing there. In relation to Charge 2, which is far and away the most serious charge you face, apart from the objective gravity of the offence, in sentencing you, I consider the maximum penalty is life imprisonment. Plainly, this is the most serious maximum penalty the criminal law allows and dwarfing the maximum penalty for the offence of trafficking a commercial quantity of the drug.
70I must consider the standard sentence for the offence in Charge 2, which is 16 years' imprisonment. The maximum penalty and the standard sentence are guideposts.
71I must also consider the serious drug offender provisions. Where relevant to you, these provisions approach your sentencing largely from the direction of the protection of the community from you.
72I now turn to the mitigating factors.
Guilty pleas
73You were charged on 28 October 2020. There was a committal hearing in the Magistrates' Court. There were seven court events in this court before the plea hearing. In terms of the timing of the entry of your pleas of guilty, they occurred well into the second half of the process starting with your charging and ending in the verdict of a jury after a trial.
74Although you offered to plead guilty to Charges 1 and 2 as early as 26 July 2021, the sticking point was the amount of methylamphetamine you were prepared to concede. On 13 August 2021, the prosecution sought 21 kilograms. On 30 September 2021, you offered 7.236 kilograms. On 18 November 2022, you offered 10 kilograms, which was accepted.
75You were prepared to plead guilty to trafficking in a large commercial quantity of methylamphetamine as early as 26 July 2021, about six weeks after the first committal mention hearing. By that stage, your solicitors would have received the prosecution's brief of evidence and discussed its contents with you. I would infer the figure of 10 kilograms represents the amount which could be proved beyond reasonable doubt.
76I would say you indicated an intention to plead guilty to the trafficking charge at a very early opportunity. The subsequent offers and counteroffers were aimed at avoiding a contest over the amount of the drug in the context of a guilty plea. In this court, that is not an unusual occurrence. It does not alter my assessment of the timing of your intention to plead guilty being very early.
77By pleading guilty to the charges, especially the charge of trafficking, in the way you have done, you have saved the time and expense of a full-blown trial and a contested plea hearing. You have allowed other trials to be listed earlier than would otherwise be the case. Even a contested plea hearing would have taken many days of evidence.
78You have spared witnesses the burden of giving evidence in a trial. Giving evidence is never easy. More generally, you have accepted responsibility for your offending.
79At the present time, pleas of guilty deserve a greater discount on sentence by assisting the criminal justice system. Why this is so was explained in the case of Worboyes v The Queen,[13] where the court said:
As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
[13] [2021] VSCA 169 at [35].
80This court is striving very hard to overcome the backlog of criminal proceedings built up during the restrictions due to the virus. It has had considerable success. However, the problem remains. Your situation is indicative. In normal times, having a person on remand for two and a quarter years would have been remarkable. It has not been so during the pandemic. The views expressed in Worboyes' case still apply.
81Your pleas of guilty are evidence of your remorse for the offending.
82Overall, your guilty pleas entitle you to a significant discount on the sentence which would otherwise have been imposed if you had pleaded not guilty but had been found guilty.
Prospects of rehabilitation
83As I said, your guilty pleas are evidence of your remorse. You are remorseful. In addition to your guilty pleas, I gather this through your letter, what you told Ms Cidoni and the letters of Mr Zouki and Mr De-Silva. From your letter, I note you are studying a university course to prepare for your re-integration into the workforce after your release from custody.
84On the other hand, you committed these serious offences having been sentenced to imprisonment for serious offences. Your disregard of the law was complete.
85The sentences which I will impose represent the longest sentence you have ever received. This is a stark demonstration of the force of the law. It should have a profound deterrent effect on you.
86I agree with your counsel's submission you are capable of rehabilitation. Assessing your prospects of rehabilitation at this time is difficult. Even if you are released from custody at or near your non-parole date, you will have spent some of the best years of your life in prison. The experience should be reformative. I would assess your prospects of rehabilitation as positive.
Current sentencing practice
87The prosecutor referred to five sentencing appeals in the Court of Appeal where the accused pleaded guilty to a charge of trafficking in a large commercial quantity of methylamphetamine.[14] The offences in those cases were committed after the start of the standard sentencing scheme. Helpfully, he calculated the times greater than the threshold of the quantity of the drug involved in each case. They ranged from 1.78 times to 10.92 times. The total effective sentences imposed ranged from 10 and a half years' imprisonment to 21 and a half years' imprisonment. The sentences on the trafficking charges varied between 10 and 15 years' imprisonment.
[14] Bruce v The Queen [2022] VSCA 100; Al Janabe v The Queen [2021] VSCA 252; DPP v Kumas [2021] VSCA 215; Quah v The Queen [2021]; Dukic v The Queen [2021] VSCA 18.
88In Bruce, the penalty for that offence was 12 years' imprisonment, which the court described as 'very lenient' where the maximum penalty is life imprisonment and Bruce trafficked 4.8 times the large commercial quantity of methylamphetamine.[15]
[15] At [5] and [34].
89In Al Janabe, the penalty was 10 years' imprisonment where there was a single transaction involving 8.916 kilograms of methylamphetamine (6.93 kilograms pure) and two further transactions involving 8 ounces of the drug. The total amount was over 9 kilograms. In terms of the pure drug, the single transaction was more than 12 times the threshold. The sentences of Mr Al Janabe on this and other charges were significantly reduced because of his assistance to the authorities, which exposed him to significant danger. Absent that assistance, Priest JA would have sentenced him to at least a third more on the trafficking charge.[16]
[16] At [32].
90In Quah, the sentence was 15 years' imprisonment for trafficking four times the threshold. The court described this sentence as 'unremarkable'.
91In Kumas, the sentence was 10 years' imprisonment where the quantity of methylamphetamine was 1.9 times the large commercial quantity threshold.
92I have already mentioned the case of the DPP v Chang and Tsao. They were cooks or workers in a clandestine methylamphetamine laboratory for a syndicate. Although essential to the production of the drug, neither held a significant position in the syndicate. Chang was involved for about four months, Tsao for about a month. On the day of the police raid, there was just over 11 kilograms of the mixed drug with purities between 1.5 per cent and 85 per cent methylamphetamine in the laboratory. Neither had a criminal history.
93Following guilty pleas, Chang was sentenced to eight years and nine months' imprisonment while Tsao to seven years and nine months for trafficking in a large commercial quantity of methylamphetamine.
94In none of the cases referred to by the prosecution or the case of Chang and Tsao was the offender sentenced as a 'serious drug offender'. Accordingly, none involved the provisions of Part 2A of the Sentencing Act.
COVID-19
95Your period on remand has been spent under the restrictions caused by the pandemic. This has seen limits on a face-to-face contact, movement within the prison facilities and the provision of programs, therapeutic or otherwise. To an extent, the provision of emergency management days is meant to offset the effect of those restrictions. However, how those days are calculated varies within the prison system. There is no evidence of how many, if any, such days have been assigned to you. I will assume none and will give weight to this burden on you in sentencing.
Verdins
96You do not rely upon any of the principles or limbs in R vVerdins[17].
[17](2007) 16 VR 269.
Sentence
97On Charge 1, a charge of possessing a traffickable quantity of firearms, I sentence you to two years' imprisonment.
98On Charge 2, a charge of trafficking a large commercial quantity of methylamphetamine, I sentence you to 15 years' imprisonment.
99On Charge 3, a charge of possession of a drug of dependence, I sentence you to 14 days' imprisonment.
100On Charge 4, a charge of knowingly dealing with the proceeds of crime, being the $141,045, I sentence you to 18 months' imprisonment.
101On Charge 5, another charge of knowingly dealing with the proceeds of crime, being the gold and silver coins, I sentence you six months' imprisonment.
102On Charge 6, a further charge of knowingly dealing with the proceeds of crime, being three motor vehicles, I sentence you to 18 months' imprisonment.
103Summary Charges 11 and 50, charges of possessing cartridge ammunition without a licence, on each, I will convict and discharge you. The maximum penalty for this offence is a fine. In light of my sentences of imprisonment, fining you serves no useful purpose. Fining you and granting a stay long enough to see you released is absurd. Otherwise, the fine would probably be unpaid and ultimately converted into a period of imprisonment.
104Summary Charge 12, a charge of possessing a prohibited weapon without an exemption or approval, being two flick knives, I sentence you to 30 days' imprisonment.
105Summary Charge 20, a charge of possessing a prohibited weapon without exemption, I sentence you to 30 days' imprisonment.
106Summary Charge 51, a rolled-up charge of unlicensed driving, I sentence you to 14 days' imprisonment. Again, given the sentences of imprisonment, there is no point in making an order interfering with your ability to drive a motor vehicle since you will be unable to do so for many years.
Total effective sentence
107The sentence on Charge 2 is the base sentence.
108As I said earlier, your 2017 sentence for drug trafficking causes you to be sentenced as a serious drug offender. In arriving at the total effective sentence, the presumption is I accumulate the sentences of the other sentences of imprisonment on the base sentence. However, the offences contained in Charges 1, 4, 5 and 6 and Summary Charges 11, 50, 12 and 20 are tied up with your drug trafficking. To accumulate the sentences on those charges fully would introduce an element of double punishment. Moreover, the principle of totality remains notwithstanding the inroads made by the sentencing factors I have identified.
109Accordingly, I will order six months of the sentence on Charge 1, three months of the sentence on Charge 4 and three months of the sentence on Charge 6 to be served cumulatively on the base sentence and on themselves. The remaining sentences of imprisonment are to be served concurrently with themselves and the other sentences of imprisonment. The total effective sentence is 16 years imprisonment.
Non-parole period
110Having regard to s11A of the Sentencing Act and the principles stated in Rahmani v The Queen,[18] I will set 10 years' imprisonment as the non-parole period.
Pre-sentence detention
[18] [2021] VSCA 51 at [38] to [40].
111You were arrested on 28 October 2020 and have remained in custody since then. Excluding today, you have been in custody for 875 days.
112I declare your 875 days of pre-sentence detention as time served under my sentences.
Section 6AAA
113If you had not pleaded guilty to the charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 24 years' imprisonment.
Serious offender declaration
114I will cause to be entered into the records of the court that I have sentenced you as a serious drug offender in relation to Charge 2.
Forfeiture and disposal orders
115I will make the forfeiture and disposal orders in the terms sought.
Section 5B(5) statement
116Section 5B(5) of the Sentencing Act requires me to explain how the sentence I have imposed on the charge of trafficking relates to the standard sentence for that offence.
117In reaching the sentence, apart from considering the standard sentence as a factor, I have considered other factors including, in particular, the maximum penalty, the gravity of the offence, the timing and nature of the guilty plea, your prospects of rehabilitation and the purposes of sentencing as influenced by Part 2A of the Sentencing Act. I consider the sentence for the charge of trafficking is appropriate.
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